NAIK v. RENAUD et al

Filing 22

OPINION filed. Signed by Judge Joel A. Pisano on 5/22/2013. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Plaintiff,
:
:
v.
:
:
DANIEL RENAUD, Director, Vermont
:
Service Center of United States Citizenship :
& Immigration Services, and
:
UNITED STATES CITIZENSHIP &
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IMMIGRATION SERVICES,
:
:
Defendants.
:
:
NEIL A. NAIK,

Civil Action No. 12-cv-4057 (JAP)
OPINION

PISANO, District Judge
This is an immigration matter concerning Plaintiff Neil A. Naik (“Plaintiff”)’s Petition
for Alien Relative (“I-130 petition”), which he filed on behalf of his wife. Defendant Daniel
Renaud is the Director of the Vermont Service Center (“VSC”), which is part of United States
Citizenship & Immigration Services (“USCIS”) (collectively “Defendants”). Defendants denied
Plaintiff’s I-130 petition because the Adam Walsh Act (“AWA”) prohibits Defendants from
granting the I-130 petition of a United States citizen convicted of a specified offense against a
minor unless the Secretary of Homeland Security determines that the citizen poses no risk to the
alien.

Subsequently, Plaintiff appealed this decision to the Board of Immigration Appeals

(“BIA”), which remanded the I-130 petition to Defendants to obtain more information. As a
result, Defendants sent Plaintiff a Notice of Intent to Deny (“NOID”) his petition and requested
additional information. Prior to responding to the NOID, Plaintiff filed a Complaint in this
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Court, challenging Defendants’ denial of his I-130 petition and requesting that the Court approve
the I-130 petition.

Presently before the Court is Defendants’ Motion to Dismiss for lack of

jurisdiction and for failure to state a claim [docket # 4]. This Court decides the Motion without
oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons discussed below,
Defendants’ Motion is granted.
I.

BACKGROUND1

Plaintiff is a United States citizen residing in New Jersey. On November 14, 2003, he
was convicted of endangering the welfare of a minor pursuant to N.J.S.A. § 2C:24-4a and was
subsequently sentenced to two days incarceration, three years probation, and community
supervision for life. At some point thereafter, Plaintiff married Jyosna Naik, a native and citizen
of India. On March 15, 2009, he filed an I-130 petition on behalf of his wife to initiate her
immigration to the United States.
Defendants are responsible for adjudicating Plaintiff’s I-130 petition. On December 10,
2010, Defendants denied Plaintiff’s I-130 petition based on the application of the AWA to
Plaintiff’s 2003 conviction.2 On January 5, 2011, Plaintiff appealed this decision to the BIA,
which considered the question of “whether approval of the visa petition filed on behalf of”
Jyosna Naik “is barred by” the AWA. Compl. ¶ 8; Compl., Ex. A; docket #4-2, Ex. 1. On

1

In addressing a motion to dismiss, the Court must accept as true the allegations contained in the Complaint. See
Levkovsky v. New Jersey Advisory Comm. on Judicial Conduct, 2012 WL 3715981, *1 n. 1 (D.N.J. Aug. 27, 2012).
Thus, the facts below are taken from Plaintiff’s Complaint filed on June 29, 2012, and any documents specifically
referred to in the pleadings, unless otherwise indicated. See Interfaith Cmty. Org. v. AlliedSignal, Inc., 928 F. Supp.
1339, 1345 (D.N.J. 1996) (stating “[a] court may consider undisputedly authentic documents a defendant attaches to
a motion to dismiss if the plaintiff’s claims are based on those documents”). The facts in this “Background” section
do not represent the Court’s factual findings.
2

Although paragraph 7 of the Complaint states that Defendants denied Plaintiff’s I-130 petition on December 10,
2010, the NOID letter discussed below lists the date as December 8, 2010 [docket #4, Ex.1]. Because on a motion
to dismiss the Court must accept as true the allegations in the Complaint, the Court will use the December 10, 2010
date.

2 

October 14, 2011, the BIA remanded the case to Defendants for “further development of the
record.” Compl. ¶ 8, Ex. A. Specifically, the BIA asked the parties to respond to the following
questions:
(1) Whether the government has the burden of proving that the
petitioner’s conviction is for a “specified offense” against a minor
under section 111 of the AWA?
(2) Whether the categorical and modified categorical approaches
should be used in making the foregoing determination?

(3) If the petitioner was found to have been convicted of a “specified
offense” against a minor, is there a rebuttable presumption that the
petitioner will pose a risk to the principal beneficiary or a
derivative beneficiary? Further, what is the basis for this
presumption and does it apply only to visa petitions where the
principal beneficiary or a derivative beneficiary is a minor?

(4) If the petitioner is found to have been convicted of a “specific
offense” against a minor, whether and under what authority, the
government applies a “beyond a reasonable doubt” standard in
determining —as a matter of discretion— if the petitioner is a risk
to the safety or well-being of the principal beneficiary or a
derivative beneficiary?
(5) Whether the Director must explain the rationale for his/her
conclusion that the petitioner poses a risk to the principal
beneficiary or a derivative beneficiary?

(6) As here, where the principal beneficiary is not a minor beneficiary
and where there are no minor derivative beneficiaries, does the
AWA require the petitioner to prove only that he or she poses no
risk to the adult principal beneficiary and any adult derivative
beneficiaries?
Finally, in the event that the Director denies this visa petition again
under the AWA and the petitioner files an appeal to this Board, the
parties are advised to include a jurisdictional statement.
Specifically,

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(7) Whether this Board has jurisdiction to review the question of
whether the Secretary applied the correct standard in determining
whether a petitioner has shown he or she is not a risk to the
principal beneficiary or a derivative beneficiary?
(8) What is the nature and scope of the Board’s jurisdiction over other
aspects of the appeal?
[Compl., Ex. 1.]
On August 21, 2012, Defendants sent Plaintiff a NOID letter, giving Plaintiff “an opportunity to
submit documentary evidence that . . . [he] feel[s] may overcome the grounds for the intended
denial” [docket #4, Ex. 1].
However, prior to the NOID letter, on June 29, 2012, Plaintiff filed a Complaint in this
Court, alleging: (1) it is “impermissibly retroactive” to apply the AWA, which was enacted in
2006, to his 2003 conviction; (2) the AWA “was not intended to apply to a marriage between
consenting adults”; (3) the application of the “beyond a reasonable doubt” standard violates the
plain language of the AWA, is inconsistent with the burden of proof applicable to adjudication of
a visa petition, and constitutes a “substantive requirement implemented without required notice
and comment under the Administrative Procedure Act (‘APA’)”; (4) the AWA violates
substantive and procedural due process under the Fifth Amendment because it does not provide a
hearing before a neutral adjudicator, meaning a citizen’s liberty interest in his marriage is subject
to the unreviewable discretion of an executive branch official, and it violates the Fifth and Eighth
Amendments by imposing a “constitutionally excessive penalty” on a United States citizen; (5)
Defendants did not apply the categorical approach to determine if Plaintiff’s conviction falls
within the parameters of the AWA; (6) Defendants have failed to adjudicate the remand of
Plaintiff’s petition in a timely manner, thereby violating the APA and the Immigration &
Nationality Act; and (7) Defendants’ failure to take action is subject to correction by mandamus.

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Compl. ¶¶ 10, 12, 14, 16, 18, 20, 22.

Plaintiff requested that the Court find the AWA

inapplicable to his I-130 petition, order Defendants to approve the petition, and grant Plaintiff
costs and attorney’s fees.
On September 17, 2012, Defendants filed the Motion to Dismiss at issue here [docket
#4]. Plaintiff filed a Cross-Motion for Summary Judgment on November 26, 2012 [docket # 13],
but on November 29, 2012, this Court denied Plaintiff’s Cross-Motion as premature and directed
him to file an opposition to Defendants’ Motion to Dismiss [docket # 16]. Plaintiff filed his
opposition brief on December 5, 2012 [docket # 17], and Defendants filed a reply brief on
December 18, 2012, in which they stated that Plaintiff responded to the NOID on November 27,
2012 [docket # 18]. Plaintiff submitted a sur-reply without seeking permission3, and Defendants
responded to it [docket # 19, 21].
Defendants have not yet rendered a final decision on Plaintiff’s I-130.
II.

DISCUSSION
A.

12(b)(1) and 12(b)(6) Standards

Under Federal Rule of Civil Procedure 12(b)(1), a case may be dismissed for “lack of
subject-matter jurisdiction.” Challenges to jurisdiction under Rule 12(b)(1) may be either facial
or factual. Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006), cert. denied, 550
U.S. 903 (2007). A facial attack challenges the sufficiency of the pleadings, and the trial court
“must consider the allegations of the complaint as true.” Id. However, in a factual attack,
plaintiff’s allegations are afforded no presumption of truthfulness, id., and the trial court may
review evidence outside the pleadings. Gould Electronics Inc. v. United States, 220 F.3d 169,

3

No sur-replies are permitted without the Judge’s permission. See Local Rule of Civil Procedure 7.1(d)(6). 

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176 (3d Cir. 2000).

The plaintiff bears the burden of establishing that jurisdiction exists.

Petruska, 462 F.3d at 302 n.3.
Under Federal Rule of Civil Procedure 12(b)(6), a case may be dismissed for “failure to
state a claim upon which relief can be granted.” “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, . . . a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Therefore, in order to withstand a motion to dismiss
pursuant to 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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The plausibility standard is satisfied “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. The plausibility standard is not a “probability requirement,” but “it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. To decide if a complaint meets this
plausibility standard and therefore, survives a motion to dismiss, the Third Circuit has required a
three step analysis: (1) the Court must “outline the elements a plaintiff must plead to . . . state a
claim for relief”; (2) the Court must identify “those allegations that are no more than conclusions
and thus not entitled to the assumption of truth”; and (3) “where there are well-pleaded factual
allegations, [the Court] should assume their veracity and then determine whether they plausibly
give rise to an entitlement for relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012);
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).

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B.

Statutory Framework

The Immigration and Nationality Act provides that “any citizen of the United States
claiming that an alien is entitled to . . . immediate relative status . . . may file a petition with”
USCIS “for such classification.” 8 U.S.C. § 1154(a)(1)(A)(i). Alien spouses of United States
citizens are considered “immediate relatives.” 8 U.S.C. § 1151(b)(2)(A)(i). Thus, a United
States citizen may file an I-130 petition on behalf of his or her spouse. See 8 C.F.R. § 204.1(a).
The petition will be approved if USCIS “determines that the facts stated in the petition are true
and that the alien in behalf of whom the petition is made is an immediate relative . . . .” 8 U.S.C.
§ 1154(b). The burden of proving visa eligibility remains on the petitioner. 8 U.S.C. § 1361.
These provisions of the Immigration and Nationality Act were amended, however, by the
AWA, which was enacted on July 27, 2006. The purpose of the AWA is to “protect the public
from sex offenders and offenders against children . . . .” 42 U.S.C. § 16901. The Act requires
sex offender registration and community notification, among other things. 42 U.S.C. §§ 1691116929. Regarding immigration, the AWA amended the Immigration and Nationality Act to bar
Defendants from granting the I-130 petition of a United States citizen “who has been convicted
of a specified offense against a minor, unless the Secretary of Homeland Security, in the
Secretary’s sole and unreviewable discretion, determines that the citizen poses no risk to the
alien with respect to whom” the petition is filed. 8 U.S.C. § 1154(a)(1)(A)(viii)(I).
C.

Defendants’ Motion to Dismiss

Defendants argue that the Complaint should be dismissed for the following reasons: (1)
there is no final agency action since Defendants are still considering Plaintiff’s I-130 petition; (2)
the Court lacks jurisdiction over Plaintiff’s claims because they are unripe; and (3) counts six
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and seven of the Complaint are moot. Plaintiff, however, asserts that final agency action exists
because Defendants denied his I-130 petition by applying the AWA retroactively to his 2003
conviction and the BIA endorsed this position on appeal by remanding the case on other legal
issues. Plaintiff argues that the BIA’s decision affirming the application of the AWA to his 2003
conviction is a final action that is subject to review. Furthermore, Plaintiff contends that his
claims are ripe because this case presents “purely legal questions” which the agency has already
taken a position on. Defendants replied by again arguing that Plaintiff’s Complaint should be
dismissed because there is no final agency action since Defendants are still adjudicating the I130 petition and there is no futility exception to final agency action. Defendants contend that
Plaintiff’s claims are unripe because (1) the BIA remanded the case to Defendants for further
information and Plaintiff recently responded to the NOID; (2) there is no futility exception to
final agency action; and (3) the decision on Plaintiff’s I-130 has not been determined yet.
Plaintiffs filed a brief, responding that there is final agency action because Defendants asked the
BIA to reconsider its decision to remand the matter. Defendants responded, again arguing that
Plaintiff’s I-130 petition is still pending, meaning there is no final agency action and noting that
it is improper for Plaintiff to appeal Defendants’ denial of his petition to the BIA and also seek a
decision from this Court.
After examining these arguments, this Court will grant Defendants’ Motion to Dismiss
for the following reasons: (1) there is no final agency action; (2) Plaintiff’s claims are unripe;
and (3) counts six and seven are moot.

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1.

There is No Final Agency Action

Plaintiff alleges that his action arises under the Immigration and Nationality Act and the
APA, which provides 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.” 5 U.S.C. § 702. “Agency action made reviewable by statute and
final agency action for which there is no other adequate remedy in a court are subject to judicial
review.” 5 U.S.C. § 704. “A preliminary, procedural, or intermediate agency action or ruling
not directly reviewable is subject to review on the review of the final agency action.” Id. If
there is no final agency action, a court lacks subject matter jurisdiction. See Veldhoen v. U.S.
Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994).
Generally, “two conditions must be satisfied for agency action to be ‘final’”: (1) “the
action must mark the ‘consummation’ of the agency’s decisionmaking process . . . — it must not
be of a merely tentative or interlocutory nature”; and (2) “the action must be one by which
‘rights or obligations have been determined,’ or from which ‘legal consequences will flow’ . . . .”
Bennett v. Spear, 520 U.S. 154, 177-78 (1997). The Third Circuit reviews “the following factors
to determine whether an agency action is final: 1) whether the decision represents the agency’s
definitive position on the question; 2) whether the decision has the status of law with the
expectation of immediate compliance; 3) whether the decision has immediate impact on the dayto-day operations of the party seeking review; 4) whether the decision involved a pure question
of law that does not require further factual development; and 5) whether immediate judicial
review would speed enforcement of the relevant act.” Ocean Cnty. Landfill Corp. v. U.S. E.P.A.
Region II, 631 F.3d 652, 655 (3d Cir. 2011) (quoting Univ. of Med. & Dentistry of New Jersey v.
Corrigan, 347 F.3d 57, 69 (3d Cir. 2003)).
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Here, there is no final agency action on Plaintiff’s I-130 petition, meaning this Court does
not have subject matter jurisdiction. First, Defendants’ denial of Plaintiff’s I-130 application
does not represent final agency action because it does not mark the consummation of the
agency’s decisionmaking process. Instead, Plaintiff appealed Defendants’ denial of the I-130
petition to the BIA, which remanded the petition to Defendants “for further development of the
record.”

Defendants issued a NOID letter, and Plaintiff recently responded to it.

Thus,

Defendants’ decisionmaking process continues as they reconcile Plaintiff’s response to the
NOID letter with his I-130 petition and the applicable law. Second, rights and obligations
concerning Plaintiff’s I-130 petition have not been determined because Defendants may still
grant or deny Plaintiff’s petition; they have not reached a final conclusion on it. As a result,
Defendants’ denial of Plaintiff’s I-130 petition is not the agency’s definitive position on the
question or has the status of law with the expectation of immediate compliance. Because
Defendants’ denial was appealed, it did not have an immediate impact on Plaintiff’s day-to-day
operations. Moreover, the petition does not involve pure questions of law and requires further
factual development because the BIA remanded the case to Defendants with eight questions that
had to be examined. Lastly, this Court’s immediate review of Plaintiff’s I-130 petition would
not speed its enforcement. Therefore, this Court does not have subject matter jurisdiction
because there is no final agency action.
Furthermore, there is no futility exception to final agency action. See Reliable Automatic
Sprinkler Co., Inc. v. Consumer Prod. Safety Comm’n, 173 F. Supp. 2d 41, 51 (D.D.C. 2001)
(stating “[f]utility alone does not excuse the need for final agency action”), aff’d, 324 F.3d 726
(D.C. Cir. 2003). In fact, “[e]xemption from the finality requirement imposed by Section 704 of
the APA is much more likely to disrupt the administrative and judicial review processes
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established by Congress.” Id. As a result, Plaintiff’s assertion that it will be futile to wait for the
agency to complete its adjudication of the case is improper.
Although Plaintiff argues that final agency action exists because Defendants denied the I130 petition by applying the AWA and the BIA affirmed the application of the AWA to
Plaintiff’s 2003 conviction, Plaintiff’s argument is without merit. “Where an intra-agency appeal
is optional [as here] . . . the APA does not require a plaintiff to appeal prior to filing suit in
federal court.” Bangura v. Hansen, 434 F.3d 487, 498 (6th Cir. 2006) (citing Darby v. Cisneros,
509 U.S. 137, 147 (1993)). “However, where an optional appeal has been taken, the ‘pending
appeal renders the decision non-final.’” Hanif v. Dep't of Homeland Sec., 472 F. Supp. 2d 914,
921 (E.D. Mich. 2007) (quoting Bangura, 434 F.3d at 501). Thus, Defendants’ denial of
Plaintiff’s I-130 petition is not final agency action because Plaintiff appealed that decision to the
BIA, and the BIA’s application of the AWA to Plaintiff’s I-130 petition is not final agency
action because the BIA remanded the case and it is still pending.
2.

Plaintiff’s Claims Are Not Ripe

Ripeness “is a justiciability doctrine designed to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract disagreements over
administrative policies, and also to protect the agencies from judicial interference until an
administrative decision has been formalized and its effects felt in a concrete way by the
challenging parties.” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 807-08
(2003) (internal quotation omitted). Judicial review “is premature when an agency has yet to
complete its work by arriving at a definite decision.” Felmeister v. Office of Attorney Ethics, a
Div. of the N.J. Admin. Office of the Courts, 856 F.2d 529, 535 (3d Cir. 1988).

11 

In order to determine whether an administrative action is ripe for judicial review, a Court
must evaluate “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties
of withholding court consideration.” Peachlum v. City of York, Pennsylvania, 333 F.3d 429, 434
(3d Cir. 2003) (internal quotation omitted) (citing Abbott Laboratories v. Gardner, 387 U.S. 136,
149 (1967)). “Whether a question is fit for judicial review depends upon factors such as whether
the agency action is final; whether the issue presented for decision is one of law which requires
no additional factual development; and whether further administrative action is needed to clarify
the agency’s position . . . .” Felmeister, 856 F.2d at 535-36. Hardship to the parties requires the
hardship to be “both immediate and significant” to “overcome prudential interests in deferral.”
Id. at 537.
First, this case is not fit for judicial decision because, as demonstrated above, there is no
final agency action. “A claim is not ripe for adjudication if it rests upon contingent future events
that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523
U.S. 296, 300 (1998) (internal quotation omitted). Defendants must grant or deny Plaintiff’s I130 petition in order for the case to be fit for judicial review. Second, there is nothing in the
record indicating that Plaintiff would suffer immediate and significant hardship by the Court
withholding a decision and waiting for Defendants to issue a final decision on the I-130 petition.
As a result, this case is not ripe, and it must be dismissed.
3.

Counts Six and Seven Are Moot

In counts six and seven of the Complaint, Plaintiff alleges that Defendants failed to
adjudicate the remand in a “timely fashion” in violation of the APA, which empowers the Court
to “compel agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1), and

12 

the “continuing failure of the [D]efendants to take action required by law is subject to correction
by mandamus . . . .” Compl. ¶¶ 20, 22. Yet, there is no evidence of unreasonable delay in
Defendants’ actions. The BIA remanded the case on October 14, 2011 and on August 21, 2012,
Defendants sent Plaintiff a NOID letter, which Plaintiff responded to on November 27, 2012.
Moreover, “a claim under § 706(1) can proceed only where a plaintiff asserts that an agency
failed to take a discrete agency action that it is required to take,” and here, Defendants did not
fail to take a required action. Hammond v. Bausman, 2011 WL 4590501, at *2 (E.D. Pa. Sept.
30, 2011). As a result, these claims are moot.
III.

CONCLUSION

Therefore, this Court grants Defendants’ Motion to Dismiss because there is no final
agency action subject to judicial review, the claims are not ripe, and counts six and seven are
moot. An appropriate Order accompanies this Opinion.
Dated: May 22, 2013

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/s/ Joel A. Pisano
JOEL A. PISANO
United States District Judge