VARGAS et al v. LYNCH et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 10/12/2016. 10/12/2016 ENTERED AND COPIES E-MAILED.(nds) Modified on 10/12/2016 (nds).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DANNY VARGAS and
LYNCH, et al.,
M E M O R A N D U M
EDUARDO C. ROBRENO, J.
October 12, 2016
Plaintiffs Danny Vargas (“Danny”), a United States
citizen, and his mother, Gladys LaTorre (“Gladys”), a native and
citizen of Peru, together petition the Court to review
immigration agency actions that could result in Gladys’s
forcible removal to Peru after having lived in the United States
for the past 22 years. Defendants Department of Homeland
Security (“DHS”), United States Citizenship and Immigration
Services (“USCIS”), and various individuals working in their
official capacities for those agencies (collectively with the
agencies, “Defendants”) have moved to dismiss Plaintiffs’
complaint on the basis that this Court lacks subject matter
jurisdiction or, alternatively, that Plaintiffs have failed to
state a claim.
For the reasons that follow, the Court will grant
Defendants’ motion to dismiss on the basis that the Court lacks
subject matter jurisdiction.
On April 3, 1993, at age 34, Gladys LaTorre (née
Vargas) entered the United States without inspection from her
native Peru. Compl. ¶ 8, ECF No. 1. Three years later, on
February 16, 1996, she married United States citizen Semaya
LaTorre (“Sammy”) in Pennsylvania, and the couple obtained a
residence at 614 Carpenter Street, Philadelphia, PA 19147. Id.
at ¶ 9.
On March 14, 1997, just over a year after they were
married, Sammy filed an I-130 Immediate Relative Immigrant
Petition for Gladys (“Sammy’s Petition”). Id. at ¶ 10. In
conjunction with this petition, the Immigration and
Naturalization Service (“INS”) interviewed Sammy and Gladys
sometime in July or August 1997.1 Id. at ¶ 11; Mot. Dismiss ¶ 5,
ECF No. 4. During the interview, an immigration officer
separated the couple and posed questions to them individually.
The Complaint states that the date of the interview
was August 27, 1997. Compl. ¶ 11. The Motion to Dismiss states
that the date of the interview was July 18, 1997. Mot. Dismiss
¶ 5. Plaintiffs’ Exhibit B, a Notice of Intent to Deny (“NOID”)
issued by the INS, see discussion infra, also states that the
interview took place on July 18, 1997. See Pls.’ Ex. B, ECF No.
1-4. The exact date of the interview is immaterial to our
resolution of this case.
Id. at ¶ 12. While separated, Sammy and Gladys provided
discrepant answers to like questions, including what they had
eaten for breakfast that morning and how they had celebrated
their birthdays together. Id.; see also Pls.’ Ex. B, ECF No. 14. These discrepancies caused their case to be referred to the
INS “investigations branch.” Id. at ¶ 13.
On February 23, 1999, INS agents visited the couple’s
address of record, 614 Carpenter Street, and found Gladys but
not Sammy there. Id. at ¶ 14. On March 8, 1999, agents visited
Sammy’s mother at her residence, located at 3747 N. 7th Street,
Philadelphia, 19140. Id. at ¶ 15. Though Sammy was not present
during this visit, Sammy’s stepfather informed the INS agents
that Sammy resided at 3747 N. 7th Street. Id.
INS agents visited 3747 N. 7th Street again the next
day, and this time, Sammy was present at the residence. Id. at
¶ 16. The INS noted that Sammy’s driver’s license listed his
address as 3747 N. 7th Street, and, according to the INS, Sammy
admitted to residing there. Mot. Dismiss ¶ 9. Further, the INS
maintains that Sammy’s mother, stepfather, and sister all stated
during this visit that they did not know the name of Sammy’s
In responsive affidavits submitted as part of this
litigation, Sammy’s mother and sister deny that this ever
happened. See Pls.’ Ex. J, ECF No. 1-5.
On May 13, 1999, Sammy and Gladys appeared for a
second interview in connection with Sammy’s Petition. Compl.
¶ 17. The couple again provided discrepant answers to like
questions, and consequently, the interviewing officer had INS
agents accompany the couple to their marital home at 614
Carpenter Street. Id. at ¶¶ 17–18.
On April 27, 2001, Danny, who is Gladys’s son and a
U.S. citizen, filed his own I-130 Immediate Relative Petition
for Gladys (“Danny’s First Petition”). Id. at ¶ 20. The INS
approved this petition on October 8, 2001. Pls.’ Ex. C, ECF No.
On February 26, 2003, USCIS3 issued a Notice of Intent
to Deny (“NOID”) regarding Sammy’s Petition on the basis that
Sammy had “failed to demonstrate that [his] marriage was for
some purpose other than to confer on [Gladys] an immigration
benefit.” Pls.’ Ex. B, ECF No. 1-4. On March 7, 2003, Sammy and
Plaintiffs note that “[a]t the time of the couple’s
filing and first interview, the agency responsible for such
immigration matters was known as the Immigration and
Naturalization Service, or ‘INS.’ The INS, however, was
dismantled under the Homeland Security Act of 2002 (Pub. L. No.
107-296, 116 Stat. 2135), with the creation of the Department of
Homeland Security and its three branches. The branch known as
the U.S. Citizen[ship] and Immigration Services, or USCIS,
assumed responsibility for immigrant petitions and other related
matters on March 1, 2003.” Compl. at 6 n.1.
Gladys amicably divorced, thereby rendering Sammy’s Petition
automatically revoked by operation of law.4 Compl. ¶ 23.
On September 4, 2003, Sammy and Gladys responded to
the NOID regarding Sammy’s Petition by sending USCIS a copy of
their divorce decree. Id. at ¶ 24. They also submitted bona
fides evidence including bank statements, utility bills, a
lease, letters of support, and family photos. Id.
On April 29, 2004, Gladys filed a Form I-485
Application to Adjust Status based on the October 8, 2001,
approval of Danny’s First Petition. Id. at ¶ 25. Several months
later, on November 22, 2004, USCIS officially denied Sammy’s
Petition based solely on the fact that the couple had divorced.
Id. at ¶ 26. USCIS expressly declined to consider the additional
bona fides evidence submitted by Sammy and Gladys, stating that
“[i]n that the relationship no longer exists, there is no need
to address this information.” Pls.’ Ex. I, ECF No. 1-5.
On March 10, 2006, USCIS issued a Notice of Intent to
Revoke (“NOIR”) regarding Danny’s First Petition. Id. at ¶ 27.
The NOIR stated that Danny’s First Petition was “approved in
error” and “without prior consideration of substantial evidence
in the record that would have precluded the approval of [the]
petition.” Pls.’ Ex. E, ECF No. 1-4. The NOIR stated further
that USCIS “conducted an independent review of the record and
See 8 C.F.R. 205.1(a)(i)(D).
found substantial and probative evidence establishing that the
beneficiary previously entered into a sham marriage with Semaya
LaTorre in an attempt to obtain immigration benefits.” Id.
One month later, on April 10, 2006, Danny and Gladys
responded to the NOIR by submitting updated bona fides evidence,
including joint bank account records (of Sammy and Gladys) and
affidavits from, among others, Sammy and his mother and sister.
Compl. at ¶ 28. Additionally, Danny requested that USCIS provide
him with supporting evidence to substantiate its allegations
against his mother.5 Id.
According to USCIS, an immigration officer spoke with
Sammy via telephone on May 4, 2006 regarding the contents of his
affidavit. Id. at ¶ 29. Just over one week later, on May 12,
2006, USCIS revoked Danny’s First Petition “based on
overwhelming evidence contained in the record . . . show[ing]
that [Gladys] and [Sammy] entered into a sham marriage in an
attempt to obtain immigration benefits.” Pls.’ Ex. K, ECF No. 16.
On May 27, 2006, Danny filed an EOIR-29 Notice of
Appeal challenging the revocation (“First Appeal”) with the
Danny claims to have never received this information,
and he complains that this constitutes a due process violation
on the grounds that he should have been entitled to “inspect the
record of proceedings” pursuant to 8 C.F.R. § 103.2(b)(16). See
Compl. ¶ 55; Pls.’ Opp. 16–18, ECF No. 5. Because we conclude
that we lack jurisdiction over this case, we decline to consider
Board of Immigration Appeals (“BIA”). Compl. ¶ 31. The BIA
apparently never rendered a decision on this appeal. See Mot.
Dismiss at 10 n.2 (“[I]t appears that the [BIA] did not issue a
decision on the [First Appeal] due in part to [Danny] filing a
second I-130 visa petition.”).
On August 18, 2007, Sammy died in a motorcycle
accident. Compl. ¶ 32. Just under two years later, on August 3,
2009, the Department of Homeland Security (“DHS”) placed Gladys
into removal proceedings by issuing a Notice to Appear in
Philadelphia Immigration Court. Id. at ¶ 33.
To defend against his mother’s removal, Danny filed a
second I-130 Petition (“Danny’s Second Petition”) for Gladys on
March 2, 2011. Id. at ¶ 34. USCIS approved this petition mere
weeks later, on March 16, 2011. Id. at ¶ 35. On February 9,
2012, however, USCIS issued a NOIR regarding Danny’s Second
Petition, once again indicating that the approval had been made
in error and that an independent review of the record showed
that approval should have been precluded because Gladys had
previously entered into a sham marriage with Sammy. Id. at ¶ 36.
Danny filed a response to this NOIR on March 8, 2012, but USCIS
nevertheless revoked the Second Petition on March 26, 2012. Id.
at ¶¶ 37-38. Danny appealed this revocation to the BIA by filing
a second EOIR-29 (“Second Appeal”) on April 3, 2012. Id. at
On July 29, 2014, the BIA denied the Second Appeal for
lack of jurisdiction, finding that the record did not clearly
indicate that Danny had authorized the appeal. Id. at ¶ 41.
Danny filed a Motion to Reconsider on August 25, 2014, arguing
that his authorization was evidenced by a signed EOIR-27 that
had been filed concurrently with the EOIR-29. Id. at ¶ 42. On
April 24, 2015, the BIA reopened the Second Appeal, conducted a
de novo review, and dismissed the appeal on the merits. Id. at
¶ 43. The BIA noted that “[t]he record contains substantial and
probative evidence that the beneficiary previously sought to
obtain an immigration benefit based on a marriage entered into
for the purpose of avoiding the immigration laws.” Pls.’ Ex. W,
ECF No. 1-10.
Plaintiffs brought the instant action under the
Immigration and Nationality Act of 1952 (the “INA”), 8 U.S.C.
§§ 1101–1537, and the Administrative Procedure Act (“APA”), 5
U.S.C. §§ 551–559, against the DHS, USCIS, and several
individual Defendants working in their official capacities with
See Compl. ¶¶ 2-5. Plaintiffs seek declaratory
The individual Defendants include the following: (1)
Loretta Lynch, in her official capacity as the Attorney General
of the United States; (2) Jeh Johnson, in his official capacity
as the Secretary of the DHS; (3) Leon Rodriguez, in his official
capacity as the Director of USCIS; (4) Edward A. Newman, in his
official capacity as the District Director of the USCIS Vermont
Service Center; and (5) Michael Borgen, in his official capacity
as the Director of USCIS Philadelphia. Plaintiffs note that
and injunctive relief pursuant to the INA, the APA, and the
Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201, 28 U.S.C.
§§ 1361-1369. See id. at ¶¶ 1-2. They claim that Gladys’s “only
mode of relief from being ordered removed from the United States
and forcibly returned [to Peru] after 22 years in the United
States would be the approval o[f] her son Danny’s petition
followed by her adjustment of status.” Id. at ¶ 47.
Plaintiffs filed their Complaint on March 25, 2016.
ECF No. 1. On May 26, 2016, Defendants filed a Motion to Dismiss
for lack of subject matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1) and failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). ECF No. 4. Plaintiffs
responded in opposition thereto on June 7, 2016. ECF No. 5. The
Court held a hearing on the motion to dismiss on September 15,
2016. ECF Nos. 8, 11. Following the hearing and pursuant to the
Court’s request, Defendants provided notice of supplemental
authority, and Plaintiffs submitted a memorandum in opposition
to this notice. ECF Nos. 14, 15.
“Defendants DHS and USCIS are made party defendants for purposes
of obtaining full relief under the APA.” Compl. ¶ 6.
III. MOTION TO DISMISS
A party may move to dismiss a complaint for lack of
subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The
Court’s method of review is determined by whether the Rule
12(b)(1) motion presents a “facial” or “factual” attack on the
claim at issue. Constitution Party of Pa. v. Aichele, 757 F.3d
347, 357 (3d Cir. 2014). A facial attack “contests the
sufficiency of the pleadings,” In re Schering Plough Corp., 678
F.3d 235, 243 (3d Cir. 2012), “whereas a factual attack concerns
the actual failure of a [plaintiff’s] claims to comport
[factually] with the jurisdictional prerequisites,” CNA v.
United States, 535 F.3d 132, 139 (3d Cir. 2008) (internal
quotation marks omitted) (alterations in original).
“In reviewing a facial attack, the court must only
consider the allegations of the complaint and documents
referenced therein and attached thereto, in the light most
favorable to the plaintiff.” Gould Elecs. Inc. v. United States,
220 F.3d 169, 176 (3d Cir. 2000). “Thus, a facial attack calls
for a district court to apply the same standard of review it
would use in considering a motion to dismiss under Rule
12(b)(6), i.e., construing the alleged facts in favor of the
nonmoving party.” Aichele, 757 F.3d at 358.
By contrast, “[i]n reviewing a factual attack, the
court may consider evidence outside the pleadings.” Gould
Elecs., 220 F.3d at 176. A factual attack places the burden of
proof on plaintiff to show “that jurisdiction does in fact
exist.” Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884,
891 (3d Cir. 1977). Accordingly, “no presumptive truthfulness
attaches to plaintiff's allegations, and the existence of
disputed material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional claims.” Id.
Defendants moved to dismiss under Rule 12(b)(1) on the
grounds that the Secretary of Homeland Security’s decision to
revoke an approved visa petition is discretionary and thus not
subject to judicial review. See Mot. Dismiss 2, 13. In response,
Plaintiffs conceded that they “cannot dispute the technical
legal descriptions of ‘denial’ decisions as non-discretionary,
and ‘revocations’ as being at the discretion of the Defendant
USCIS.” Pls.’ Opp. 5. Instead, Plaintiffs opposed Defendants’
12(b)(1) motion on the basis that “for all intents and purposes,
equitable and otherwise, the instant ‘revocation’ of Danny’s
petition for his mother Gladys, issued nunc pro tunc, by the
Defendants--after realizing their own error--is nothing more
than a[n] ex post facto curative for its own mistaken
[approval].” Id. Plaintiffs thus characterize Defendants’
revocation of Danny’s petitions as a “cloak” or “cover” for what
is in reality a statutory denial. See Pls.’ Opp. 5.
As an initial matter, Defendants’ motion constitutes a
factual attack under 12(b)(1) because it challenges whether this
Court actually has jurisdiction to hear the case. The Court
therefore analyzes this issue mindful that Plaintiff bears “the
burden of proof that jurisdiction does in fact exist.”
Mortensen, 549 F.2d at 891.
The Immigration and Nationality Act (“INA”), 8 U.S.C.
§§ 1101–1537, allows an alien eligible for an indefinite stay in
the United States to petition for an immigrant visa. Immigrant
visas are governed by 8 U.S.C. § 1154 and 8 C.F.R. § 204, which
restrict an alien’s eligibility to enter the United States
unless the alien fits into at least one of several carefully
tailored categories. Every petition approved under 8 U.S.C. §
1154 is subject to 8 U.S.C. § 1155, which 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.
Such revocation shall be effective as of the date of approval of
any such petition.” 8 U.S.C. § 1155.
Generally, a court has jurisdiction under Section 704
of the Administrative Procedure Act (“APA”), 5 U.S.C. § 704, to
review “final agency action” that is non-discretionary and
adversely affects the party seeking review. Pinho v. Gonzales,
432 F.3d 193, 200 (3d Cir. 2005). The Third Circuit has
emphasized the importance of “distinguish[ing] carefully”
between “decisions committed to agency discretion, and
decisions, whether ministerial or purely legal, governed
directly by the applicable statute or regulation”:
This distinction is central to the question
of subject-matter jurisdiction, and is easy
to elide. . . . Whatever the label, our
caselaw distinguishes between actions which
an agency official may freely decide to take
or not to take, and those which he is
obligated by law to take or not to take. In
the case of adjustment of status, an
eligible immigrant may have his application
denied within the discretion of the agency.
But the immigrant’s eligibility itself is
determined by statute. To treat all denials
of adjustment as discretionary, even when
based on eligibility determinations that are
plainly matters of law, is to fundamentally
misunderstand the relationship between the
executive and the judiciary.
Id. (emphasis added) (internal quotation marks and citations
Several months after deciding Pinho, the Third Circuit
held unequivocally that a USCIS decision to revoke a visa
pursuant to 8 U.S.C. § 1155 is an unreviewable discretionary
determination. See Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d
196, 205 (3d Cir. 2006). Accordingly, federal courts lack
jurisdiction to review § 1155 revocation decisions because of
the jurisdiction-stripping provision of 8 U.S.C.
§ 1252(a)(2)(B)(ii). See id. This provision, as amended by the
REAL ID Act of 2005, provides in relevant part as follows:
law . . . and regardless of whether the
judgment, decision, or action is made in
removal proceedings, 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
Security . . . .
8 U.S.C. § 1252(a)(2)(B)(ii).7 The court explained in Jilin that
the language “may,” “at any time,” and “deems” in 8 U.S.C.
§ 1155 renders discretionary any decision made pursuant to that
provision--and because those decisions are considered
discretionary, they are also considered unreviewable under 8
U.S.C. § 1252(a)(2)(B)(ii). Jilin, 447 F.3d at 203–05.
Several judges within this District have recently
ruled on cases similar to the present case, and in every
instance, they have found jurisdiction lacking over § 1155
decisions due to § 1252(a)(2)(B)(ii). In Wang v. Johnson, No.
15-cv-358, 2015 WL 4932214 (E.D. Pa. Aug. 18, 2015), the
petitioner was a Chinese immigrant who married a U.S. citizen
five years after entering the United States as a B-1 visitor.
Id. at *1. Shortly after the marriage, the petitioner’s husband
As Defendants note, “[a]lthough § 1252 is titled
‘Judicial review of orders of removal,’ the jurisdiction
stripping provision has been amended to apply ‘regardless of
whether the judgment, decision, or action is made in removal
proceedings.’” Mot. Dismiss at 14 n.5 (quoting REAL ID Act of
2005, Pub. L. No. 109-13, Div. B., § 101(f)(2), 119 Stat. 231,
305 (2005) (codified as amended at 8 U.S.C. § 1252(a)(2)(B)).
filed an I-130 petition on her behalf, and the petition was
thereafter approved. Id. After the petitioner applied for an
adjustment of status to become a permanent resident, however,
USCIS issued a NOIR stating that the petitioner had, at the time
she applied for her B-1 visa, indicated she was married to
someone else. Id. USCIS then determined that the petitioner had
failed to prove either that she had terminated her previous
marriage or that the marriage had never existed, and it
therefore revoked the previously approved I-130 petition
pursuant to 8 U.S.C. § 1155. Id.
Citing Pinho, the Wang petitioner argued that the
court had jurisdiction over the decision regarding her
adjustment of status because “the determination of eligibility
for status adjustment is a reviewable legal question.” Wang,
2015 WL 4932214, at *4. The district court, however, rejected
this argument on the basis that “[w]hether or not the I-130
petition was or should have been revoked is not a legal question
like the question in Pinho of what constituted a ‘conviction’
under the relevant statute.” Id. The district court found
instead that “[t]he decision in Jilin is controlling in this
case and it established that decisions by the Secretary made
pursuant to § 1155 are not subject to judicial review.” Id. at
Trans American Trucking Service, Inc. v. Holder, No.
09-6116, 2010 WL 1371663 (D.N.J. Apr. 5, 2010), yielded a
similar result: the district court found that jurisdiction was
lacking because “[t]he Third Circuit in Jilin made clear that
revocation decisions under § 1155 are not subject to judicial
review regardless of the basis for the decision.” Id. at *2. In
reaching this conclusion, the district court specifically
rejected the plaintiffs’ argument that “guidance or definitions
provided in other statutes relied on in making a revocation
decision make judicial review meaningful, altering the general
position that revocation decisions under § 1155 are not
The Court is vaguely troubled by the implications of
the Jilin rule. The parties do not dispute that had USCIS denied
Sammy’s Petition in the first instance, that denial would be
reviewable by this Court. Further, the parties do not dispute
that USCIS should have denied Sammy’s Petition in the first
instance, nor do they dispute that USCIS mistakenly approved the
petition pursuant to 8 U.S.C. § 1154(b). Finally, the parties do
not dispute that, in order to obtain judicial review in this
case, Danny must once again (for a third time) file an I-130
Petition for Gladys, await Defendants’ (presumable) denial of
that petition under 8 U.S.C. § 1154(c), and then file a
complaint based on the reviewable denial of the petition.
As Plaintiffs point out, Jilin’s bar on judicial
review of § 1155 revocation decisions theoretically could allow
USCIS and the BIA to trap Plaintiffs in a perpetual cycle of
unresolved petitions. If USCIS and the BIA continue to approve
Danny’s petitions for Gladys--thereby giving Danny and Gladys no
grounds to complain to a court about a non-discretionary (and
therefore reviewable) denial--but then revoke those approvals in
discretionary (and therefore unreviewable) decisions pursuant to
§ 1155, then Plaintiffs will never obtain judicial review of a
discretionary decision that is functionally equivalent to a
mandatory denial. Pls.’ Opp. 5-6 & n.2. The Jilin rule thus
seems to provide a loophole--however small--through which
agencies might dodge the important distinction “between actions
which an agency official may freely decide to take or not to
take, and those which he is obligated by law to take or not to
take.” Pinho, 432 F.3d at 200.
Nevertheless, the Jilin rule is just that: a rule.8
The Jilin court acknowledged explicitly that its decision
The Third Circuit is aligned with nearly all other
circuits to have confronted this issue. See Mehanna v. U.S.
Citizenship & Immigration Servs., 677 F.3d 312, 314-15 (6th Cir.
2012) (revoking a visa petition under § 1155 is discretionary);
Green v. Napolitano, 627 F.3d 1341, 1344-46 (10th Cir. 2010)
(same); Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir. 2009)
(same); Sands v. U.S. Dep’t of Homeland Sec., 308 Fed. App’x
418, 419-20 (11th Cir. 2009) (same); Ghanem v. Upchurch, 481
F.3d 222, 223-24 (5th Cir. 2007)(same); El-Khader v. Monica, 366
F.3d 562, 566 (7th Cir. 2004) (same). Only the Ninth Circuit has
“allow[s] the Secretary to approve a petition it did not like on
Monday, then revoke it on Tuesday and be fully insulated from
judicial review, whereas, had [he] denied it on Monday, that
denial would have been reviewable.” Jilin, 447 F.3d at 205 n.11.
This “inequitable result” notwithstanding, the Jilin court
nevertheless ruled as it did, noting that its “hands are tied to
correct a curious result of Congress’ statutory scheme.” Id. Our
sister courts within this District have followed the Jilin rule
in similar cases, and we are presently constrained to do the
For the foregoing reasons, the Court will grant the
motion to dismiss only on the basis that the Court lacks
jurisdiction to review the Secretary of Homeland Security’s
decision to revoke an approved visa petition. The Court declines
reached the opposite conclusion and held, in a split decision,
that courts do have jurisdiction under § 1252(a)(2)(B)(ii) to
review § 1155 revocations. See ANA Int’l, Inc. v. Way, 393 F.3d
886, 895 (9th Cir. 2004) (explaining that “[w]hen the Attorney
General relies upon discrete legal classifications of an
individual or an act to reach a decision, even where that
decision involves a certain measure of discretion, the meaning
of that particular legal classification nevertheless remains a
reviewable point of law.”). The Third Circuit in Jilin
explicitly rejected the Ninth Circuit’s holding and rationale.
See Jilin, 447 F.3d at 202-04 (rejecting the appellants’
argument “[t]racking the Ninth Circuit’s logic in ANA
to reach the question of whether Plaintiffs have failed to state
a claim under Rule 12(b)(6).
An appropriate order follows.
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