Nouritajer et al v. Cissna et al

Filing 31

MEMORANDUM & ORDER granting 27 Motion to Dismiss. For the reasons detailed in the attached Memorandum and Order, the 1 complaint is dismissed for lack of subject matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1). When a case is dismissed for lack of federal subject matter jurisdiction, Article III deprives the court of the power to dismiss the case with prejudice. Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 121 (2d Cir. 2017) (quoting Hernandez v. Conr iv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999)). Therefore, dismissal of this action is without prejudice. The Clerk of Court is respectfully directed to enter judgment dismissing plaintiffs claims without prejudice and close this case. Ordered by Judge Kiyo A. Matsumoto on 2/16/2021. (Bose, Rhick)

Case 1:18-cv-06512-KAM Document 31 Filed 02/16/21 Page 1 of 15 PageID #: 1464

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
THE RAZI SCHOOL and SIMIN
NOURITAJER,
Plaintiffs,

MEMORANDUM & ORDER

-against-

18-CV-6512 (KAM)

L. FRANCIS CISSNA, Director, United
States Citizenship & Immigration
Services and UNITED STATES
CITIZENSHIP & IMMIGRATION SERVICES,
Defendants.
----------------------------------X
MATSUMOTO, United States District Judge:
In a Second Amended Complaint (“SAC”), plaintiffs the
Razi School (the “Razi School”) and Simin Nouritajer
(“Nouritajer”) (together, “plaintiffs”) seek judicial review,
pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §
701 et seq., of the United States Citizenship and Immigration
Service’s (“USCIS”) revocation of Plaintiffs’ Form I-140,
Immigrant Petition for Alien Workers (“I-140”), and denial of
Plaintiffs’ motion to reopen the revocation.

(Plaintiffs’

Second Amended Complaint (“SAC”), ECF No. 17, ¶ 1.)

Defendants

L. Francis Cissna, Director, USCIS, and USCIS (the “defendants”
or “government”) move to dismiss the SAC for lack of subject
matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).

(Mem.

of Law in Support of Def.’s Mot. to Dis. Pl.’s Sec. Am. Compl.
(“Def. Mem.”), ECF No. 28.)

For the following reasons,

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plaintiffs’ complaint is dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil
Procedure.
BACKGROUND
The following allegations from the complaint are taken
as true for the purposes of a motion to dismiss.1

See Ashcroft

v. Iqbal, 556 U.S. 662, 679 (2009); Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007); see also Morrison v. Nat’l
Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citations
omitted) (discussing treatment of material factual allegations
in complaint for purposes of Rule 12(b)(1) analysis), aff’d on
other grounds, 561 U.S. 247 (2010).
Plaintiff the Razi School was established in the
Eastern District of New York in 1995 and provides education in
an Islamic environment for from pre-Kindergarten through the
12th grade.

(SAC ¶ 2.)

Plaintiff Simin Nouritajer, a resident

of the Eastern District of New York, is a native and citizen of
Iran, and has taught at the Razi School since January 2002.

Id.

Ms. Nouritajer’s husband, Mehdi Faridzadeh, a nonparty to this
action, formerly served in the Iranian Mission to the United
Nations and was a visiting scholar at Columbia University.

1

Citation refers to ECF pagination, unless otherwise noted.

2

Id.

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On December 28, 2004, the Razi School filed an
application for a labor certification with the Department of
Labor seeking certification for Ms. Nouritajer as a teacher.
(Id. ¶ 7; Dep’t of Labor (“DOL”) Approved Labor Cert., Exh. A
(“Exh. A”), ECF No. 17.)

The application specified Ms.

Nouritajer’s qualifications for the teaching position including
a bachelor’s degree in English and over 19 years of experience
teaching middle school English.

(Id.; SAC ¶ 2.)

On January 18,

2007, the Department of Labor approved Ms. Nouritajer’s labor
certification.

(Id. at 10; Exh. A, ECF No. 17.)

On May 7, 2007, the Razi School filed a Form I-140,
Immigrant Petition for Alien Workers, on behalf of Ms.
Nouritajer, seeking to classify her as an Employment-Based Third
Preference category (“EB-3”) professional.
U.S.C. § 1153(b)(3)(A)(ii).)

(Id. ¶¶ 5, 8; see 8

USCIS submitted a request to the

Razi School for additional information that the school lost, and
Ms. Nouritajer never received.

(SAC ¶ 8.)

USCIS subsequently

denied the petition for abandonment and reopened the case in
March 2013.

Id.

In April 2013, USCIS sent the same request for

additional information and received a timely reply.

Id.

On

November 19, 20132, USCIS approved Ms. Nouritajer’s I-140.

2

In its brief, the government clarifies that the plaintiff incorrectly
identified the approval date as November 13, 2013, when it is actually
November 19, 2013. (Def. Mem. at 2.) However, there is no exhibit
accompanying the Exhibit B cover sheet in plaintiffs’ submission. (See SAC
at 16.) As a result, the court cites to Exhibit F, USCIS Motion on

3

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(USCIS Mot. on Admin. Appeals Reconsideration Decision, Exh. F
(“Exh. F”), ECF No. 17 at 3.)
On July 11, 2017, USCIS issued a Notice of Intent to
Revoke (“NOIR”) the I-140, finding that the initial grant of Ms.
Nouritajer’s I-140 had been in error.

(SAC ¶ 9; USCIS Mot. on

Admin. Appeals Decision, Exh. D (“Exh. D”), ECF No. 17 at 30.)
The Razi School opposed the revocation.

(Plaintiffs’ Brief in

Support of I-290B Notice of Appeal, Exh. C (“Exh. C”), ECF No.
17.)

On August 18, 2017, USCIS revoked the I-140 concluding that

the previous grant had been in error, as the Razi School did not
establish its ability to pay the proffered wage and Ms.
Nouritajer did not establish sufficient qualifications for the
offered position. (See ECF No. 17, Exh. D.)
The Razi School appealed the revocation to the USCIS
Administrative Appeals Office (“USCIS AAO”), citing new evidence
and, on August 1, 2018, USCIS rejected plaintiffs’ appeal,
finding that the Razi School had failed to establish that: (1)
Ms. Nouritajer had the necessary experience and qualifications
listed in the approved labor certification, and (2) the Razi
School had the ability to pay Ms. Nouritajer the proffered wage.
(See ECF No. 17, Exhs. C, D.)

First, the USCIS AAO found that

Ms. Nouritajer’s experience while still in Iran, over 2.7 years,

Administrative Appeals Decision, ECF No. 17, confirming that November 19,
2013 is the correct approval date.

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as a mathematics teacher in two Iranian middle schools, did not
qualify her for the elementary school teacher job description
put forward by the Razi School for children from kindergarten to
fourth grade, instructing students in English, language arts,
and Islamic literature.

(ECF No. 17, Exh. D at 31.)

The

application for Ms. Nouritajer’s labor certification stated that
her experience at the Iranian middle school was 2.7 years of
teaching English.

(ECF No. 17, Exh. A at 12-13.)

Next, the

USCIS AAO found that the Razi School had filed immigrant
petitions, in addition to Ms. Nouritajer’s, that were pending,
approved, or submitted after Ms. Nouritajer’s priority date.
(Id. at 32.)

The Razi School failed to withdraw two other

petitions that had been approved before Ms. Nouritajer’s
petition priority date of December 28, 2004, because the two
employees with approved petitions no longer worked at the Razi
School, and the school was no longer responsible to demonstrate
an ability to pay the other approved employees.
Exh. F at 48.)

(ECF No. 17,

Because the Razi School did not withdraw these

two other petitions, though the Razi School had the requisite
funds to pay Ms. Nouritajer’s wages, the USCIS AAO found that
the Razi School, as a non-profit organization employing Ms.
Nouritajer in a non-revenue generating position, did not have
sufficient funds to pay the wages for all of the petitions filed
for the beneficiaries supported by the Razi School until the
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beneficiaries obtain lawful permanent residence.
Exh. D at 34.)
decision.

(ECF No. 17,

The Razi School filed a motion to reopen the AAO

(Plaintiffs’ Motion to Reopen, Exh. E (“Exh. E”), ECF

No. 17.)

The USCIS AAO denied the Razi School’s motion on May

29, 2019.

(See ECF No. 17, Exh. F.)

The instant action

followed.
In addition, Plaintiffs also allege that from 2010 to
2015, Ms. Nouritajer, her husband and child were subjected to
repeated surveillance and questioning from agents from the
Federal Bureau of Investigations (“FBI”).

(SAC ¶ 11.)

The FBI

and its agents are not named as a party or parties to this
action.

Id.

Plaintiffs allege that the FBI agents told them

that their applications for permanent residence would be delayed
or denied if they did not offer information about Iran’s
relationship with the United States.

Id.

Plaintiffs further

allege that Ms. Nouritajer’s husband and child were temporarily
stopped from boarding a flight to Iran on February 27, 2010, and
upon their return on March 10, 2010, Ms. Nouritajer’s husband
was questioned for over five hours, and Ms. Nouritajer and her
child were also separately held and questioned.

Id.

Plaintiffs

also allege that Mr. Nouritajer’s husband, a nonparty to this
action, was denied reentry into the United States in 2013 by
United States Customs and Border Patrol (“CBP”) agents.

6

Id.

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Plaintiffs seek an order (1) reversing the revocation
of the I-140 and the denial of their motion to reopen, and (2)
finding that the revocation of the I-140 and the denial of their
motion to reopen was pretextual based on Plaintiffs’ religion
and national origin. (Id. at 8 (Prayer for Relief ¶¶ (a), (b)),
ECF No. 17.)
LEGAL STANDARD
I.

Motion to Dismiss for Lack of Subject Matter Jurisdiction
“A case is properly dismissed for lack of subject

matter jurisdiction under [Federal Rule of Civil Procedure]
12(b)(1) when the district court lacks the statutory or
constitutional power to adjudicate it.”

Makarova v. United

States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ. P.
12(b)(1)).

The court “may refer to evidence outside the

pleadings” when resolving a Rule 12(b)(1) motion. Id.
A Rule 12(b)(1) challenge to subject matter
jurisdiction may be facial, that is, based solely on the
pleadings, in which case the court must determine whether the
pleadings “allege facts that affirmatively and plausibly suggest
that [the plaintiff] has standing to sue.”

Amidax Trading Grp.

v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011); accord
Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir.
2016).

A Rule 12(b)(1) motion may also be fact-based and rely

on evidence beyond the pleadings, in which case a plaintiff must
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present controverting evidence unless the evidence is
“immaterial because it does not contradict plausible allegations
that are themselves sufficient to show standing.”
F.3d at 57.

Carter, 822

A plaintiff bears the burden of proving by a

preponderance of the evidence that subject matter jurisdiction
exists.

Makarova, 201 F.3d at 110.
In applying Rule 12(b)(1), “‘the court must take all

facts alleged in the complaint as true and draw all reasonable
inferences in favor of plaintiff,’ but ‘jurisdiction must be
shown affirmatively, and that showing is not made by drawing
from the pleadings inferences favorable to the party asserting
it.’”

Morrison, 547 F.3d at 170 (quoting Natural Res. Def.

Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) and APWU v.
Potter, 343 F.3d 619, 623 (2d Cir. 2003)).

Additionally, the

court “may consider affidavits and other materials beyond the
pleadings to resolve the jurisdictional issue, but . . . may not
rely on conclusory or hearsay statements contained in the
affidavits.”

J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d

107, 110 (2d Cir. 2004) (citing Zappia Middle E. Const. Co. Ltd.
v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000) and
Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d
Cir.1986)).

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DISCUSSION
Plaintiffs submit a five-count complaint.

Counts one

and two allege violations of the Administrative Procedure Act’s
notice and comment requirements, 5 U.S.C. § 553, and that
USCIS’s revocation decision was arbitrary and capricious based
on the Razi School’s demonstrated ability to pay for Ms.
Nouritajer’s position.

(See SAC ¶¶ 13, 15.)

Count three

alleges that USCIS’ decision was arbitrary and capricious based
on the Department of Labor’s (“DOL”) labor certification for Ms.
Nouritajer’s teaching position.

(See id. ¶¶ 17-18.)

Count four

alleges that the FBI’s referral of Ms. Nouritajer and her family
to the Controlled Application Review and Resolution Program
(“CARRP”), that subjects Muslim and Iranian applicants to harsh
scrutiny based on their race and national origin, violates the
due process clause of the Fifth Amendment.

(See id. ¶ 20.)

Count five alleges that USCIS’ revocation of Ms. Nouritajer’s I140 over three years after the I-140’s initial approval unduly
prejudiced Ms. Nouritajer’s, and her family’s, common law
reliance interests.

(See id. ¶ 22.)

As the government correctly argues, the gravamen of
plaintiffs’ complaint is a request to review USCIS’s decision to
revoke plaintiffs’ I-140 immigrant petition for alien workers.
(Def. Mem. at 3.)

As a threshold matter, the court lacks

jurisdiction to review the USCIS’ substantive discretionary
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decision to revoke Ms. Nouritajer’s I-140 immigrant petition for
alien workers, and thus does not reach the remaining grounds for
relief in plaintiffs’ second amended complaint.
To the extent that plaintiffs are attempting to
challenge the substantive basis for USCIS' decision, this court
does not have subject matter jurisdiction to entertain such a
claim.

Two related sections of the Immigration and Nationality

Act (“INA”), 8 U.S.C. § 1101 et seq., preclude judicial review.
First, 8 U.S.C. § 1252(a)(2)(B)(ii) provides that “no court
shall have jurisdiction to review ... 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.”

Furthermore, 8 U.S.C. §

1155 provides that “[t]he 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.

I-140 petitions

are among the petitions that fall within the Secretary's § 1155
revocation discretion and authority, and the Secretary has
delegated his revocation authority to any USCIS officer
authorized to approve immigrant visa petitions. See 6 U.S.C. §
271(b)(1); 8 C.F.R. § 205.2(a).

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The court’s holding is in line with the weight of
appellate opinion across the country and in this Circuit.

The

Second Circuit has held and reaffirmed “that 8 U.S.C. § 1252
‘strips jurisdiction over a substantive discretionary decision’”
by the Secretary.

Chen v. Coven, 672 F. App'x 136, 137 (2d Cir.

2017) (citing Mantena v. Johnson, 809 F.3d 721, 728 (2d Cir.
2015); see Firstland Int'l Inc. v. INS, 377 F.3d 127, 131 (2d
Cir. 2004) (observing in dicta that “the substance of the
decision that there should be a revocation is committed to the
discretion of the [Secretary]”).

In addition, “nine federal

courts of appeals have held (and a tenth has said in dicta) that
courts lack jurisdiction to consider…claims [regarding whether
these INA provisions deprive courts of jurisdiction to consider
challenges to petition-revocation decisions].”

iTech US, Inc.

v. Cuccinelli, 474 F. Supp. 3d 291, 293 (D.D.C. 2020)
(collecting cases from the First, Second, Third, Fourth, Fifth,
Sixth, Seventh, Eighth, Tenth and Eleventh Circuits); compare
ANA Int'l Inc. v. Way, 393 F.3d 886, 893-95 (9th Cir. 2004)
(holding in a divided panel opinion that § 1155's reference to
“good and sufficient cause” provides a justiciable standard for
reviewing petition-revocation decisions), but see Poursina v.
USCIS, 936 F.3d 868, 875 (9th Cir. 2019) (noting that the
Circuit’s position is “an outlier among the federal circuit

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courts” and declining to extend ANA Int’l Inc. beyond “its
narrow holding”).
Plaintiffs’ attempt to argue against the overwhelming
weight of authority fails.

First, Ms. Nouritajer filed her I-

140 immigrant visa petition under the EB-3 visa category and
thus is subject to revocation under § 1155.

See 8 U.S.C. §§

1153(b)(3)(A)(ii), 1154(a)(1)(F) (“Any employer desiring and
intending to employ within the United States an alien entitled
to classification under section . . . 1153(b)(3) of this title
may file a petition with the Attorney General for such
classification”).

Revocation of a previously approved visa

petition by the USCIS “for . . . good and sufficient cause”, and
its subsequent review through the administrative appeals
process, is a discretionary act.

See 8 U.S.C. §§ 1155,

1153(b)(3)(A)(ii), 1154(a)(1)(F).

As the government

persuasively argues, the statute confers discretion on the
agency to revoke an approved petition.
131; Mantena, 809 F.3d at 728.

Firstland, 377 F.3d at

The appeals process does not

alter the underlying revocation decision made by the USCIS,
which is discretionary, see 8 U.S.C § 1155, despite the
statutory appeals process afforded to plaintiffs.
205.2(d), 103.3(a)(1)(ii).

8 C.F.R. §§

Plaintiffs attempt to argue, without

citation to a contravening statute or authority from this
circuit, that Mantena and Firstland should not be read to impose
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a jurisdictional bar on discretionary revocation decisions and
their substance.

Pl. Opp. at 12-13.

As discussed supra,

however, plaintiffs’ summary reading of Mantena and Firstland is
self-serving, confusing and without merit.

Id.

To the extent

that plaintiffs attempt to frame their substantive claims as
procedural claims to avoid § 1252’s jurisdictional bar, “a
plaintiff cannot sidestep § 1252(a)(2)(B)(ii) by artfully
framing a challenge to the agency’s substantive decision as a
procedural claim.”
Cir. 2019).

Doe v. McAleenan, 926 F.3d 910, 915 (7th

As the statues and caselaw from this and ten other

Circuits make clear, see supra, the revocation of an I-140
petition is a discretionary decision, not reviewable by this
court.
To the extent that plaintiffs claim legal errors or a
constitutional violation, their claim is not cognizable in this
court.

(See SAC ¶¶ 1, 12-23.)

The REAL ID Act of 2005,

codified at 8 U.S.C. § 1252(a)(2)(D) creates an exception to §
1252’s jurisdiction stripping provision: “[n]othing in [§
1252(a)(2)(B)] ... shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition
for review filed with an appropriate court of appeals ....”
This statutory exception is limited by its express terms to
courts of appeals.

See also Shabaj v. Holder, 718 F.3d 48, 51

(2d Cir. 2013) (“Thus, while this court would have jurisdiction
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to review any constitutional claims or questions of law properly
raised in a petition for review, the district court did not have
jurisdiction to review [plaintiff's] challenge [under §
1252(a)(2)(D)].” (emphasis in original)).

Plaintiffs’ claim

that the USCIS AAO’s revocation decision was arbitrary and
capricious in violation of the Administrative Procedure Act
(“APA”) fails for the same reason.

Delgado v. Quarantillo, 643

F.3d 52, 55-56 (2d Cir. 2011) (APA review is not available when
claim falls within the scope of 8 U.S.C. § 1252(a)(2)(B)(i)’s
jurisdictional limits).
For the foregoing reasons, the court lacks subject
matter jurisdiction over plaintiffs’ claims and the action is
dismissed without prejudice. Mantena, 809 F.3d 728.
CONCLUSION
For the foregoing reasons, the complaint is dismissed
for lack of subject matter jurisdiction pursuant to Rule
12(b)(1).

“When a case is dismissed for lack of federal subject

matter jurisdiction, ‘Article III deprives the court of the
power to dismiss the case with prejudice.’”

Katz v. Donna Karan

Co., L.L.C., 872 F.3d 114, 121 (2d Cir. 2017) (quoting Hernandez
v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999)).
Therefore, dismissal of this action is without prejudice.
Clerk of Court is respectfully directed to enter judgment

14

The

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dismissing plaintiff’s claims without prejudice and close this
case.

SO ORDERED.
Dated: Brooklyn, New York
February 16, 2021
________ /s/____________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

15