Polfliet et al v. Rodriguez et al

Filing 22

ORDER AND OPINION granting 6 Motion to Dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and DISMISSING the Complaint with prejudice. Because the court lacks subject matter jurisdiction, the court DENIES AS MOOT Defendants' Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Signed by Honorable J Michelle Childs on 9/28/2017.(asni, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Robert John Polfliet and Masato Kimiki,

)
)
Plaintiffs,
)
v.
)
)
Leon Rodriguez, Director, U.S. Citizenship )
& Immigration Services and Loretta Lynch, )
Attorney General of the United States,1
)
)
Defendants.
)
___________________________________ )

Civil Action No.: 5:16-cv-03358-JMC

ORDER AND OPINION

Plaintiffs Robert John Polfliet and Masato Kimiki (together “Plaintiffs”) filed the instant
action against Defendants Leon Rodriguez, Director of the United States Citizenship and
Immigration Services2 (“USCIS”), and Loretta Lynch, Attorney General of the United States,
(together “Defendants”) seeking to have the court set aside the USCIS’s decision to revoke
Kimiki’s visa petition pursuant to the Adam Walsh Child Protection and Safety Act of 2006 (the
“Adam Walsh Act”), 42 U.S.C. §§ 16901-16997. (ECF No. 1.)
This matter is before the court on Defendants’ Motion to Dismiss pursuant to Rules3
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (ECF No. 6). Plaintiffs oppose
Defendants’ Motion to Dismiss asserting that “the [c]ourt should deny this motion, order the
1

Pursuant to Federal Rule of Civil Procedure 25(d), James McCament is substituted for Leon
Rodriguez as named Defendant because McCament is the Acting Director of the United States
Citizenship and Immigration Services. USCIS, https://www.uscis.gov/about-us/leadership/
james-mccament-acting-director-us-citizenship-and-immigration-services (last visited Sept. 28,
2017). Additionally, pursuant to Rule 25(d), Jeff Sessions is substituted for Loretta Lynch
because he was sworn in as the 84th Attorney General of the United States on February 9, 2017.
DOJ, https://www.justice.gov/ag/staff-profile/meet-attorney-general (last visited Sept. 28, 2017).
2
USCIS “is a component of the United States Department of Homeland Security (DHS).”
USCIS, https://en.wikipedia.org/wiki/United_States_Citizenship_and_Immigration_ Services
(last visited Sept. 27, 2017).
3
The court observes that from this point forward, “Rule” refers to the Federal Rules of Civil
Procedure.
1

government to file the certified administrative record, and set a briefing schedule.” (ECF No. 11
at 1.) For the reasons set forth below, the court GRANTS Defendants’ Motion to Dismiss
pursuant to Rule 12(b)(1) and DENIES AS MOOT Defendants’ Motion to Dismiss pursuant to
Rule 12(b)(6).
I.

RELEVANT BACKGROUND TO PENDING MOTION

Polfliet is a United States citizen residing in Orangeburg, South Carolina. (ECF No. 1 at
2 ¶ 1.) Kimiki is Polfliet’s stepson and a Japanese national and citizen. (Id. ¶ 2.) Plaintiffs
allege that Polfliet as a member of the United States Air Force “was stationed in Japan in the late
1990s and early 2000s.” (ECF No. 1 at 3 ¶ 8.) While in Japan, Polfliet allegedly met and
eventually married Kimiki’s biological mother, also a Japanese national and citizen. (Id. ¶¶ 9,
12.) Plaintiffs further allege that at some unspecified time before 2006, Polfliet was “convicted
by a general court-martial before a military judge sitting alone of various crimes, including 18
U.S.C. § 2252A for possession of child pornography.” (ECF No. 1 at 3 ¶ 10.)
After 2006 and pursuant to the Immigration and Nationality Act (the “INA”),4 8 U.S.C.
§§ 1101–07, 1151–1381, 1401–1504, 1521–1525 & 1531–1537, Plaintiffs allege that Polfliet
submitted a Form I-130, Petition for Alien Relative to the USCIS for purposes of obtaining an
immigrant visa as to his wife.5 (ECF No. 1 at 3 ¶ 14.) The USCIS approved Polfliet’s petition
4

Authority to administer the INA has been delegated to the United States Department of
Homeland Security (“DHS”) and sub-delegated to the USCIS. 8 U.S.C. § 1103(a)(1); 8 C.F.R. §
2.1.
5
The INA’s system for immigrant visas is effectively described as follows:
The Immigration and Nationality Act (“INA”) permits a United States citizen to
petition for a visa on behalf of a foreign-national spouse or child by filing Form I–
130 with the USCIS. 8 U.S.C. § 1154(a); see 8 C.F.R. § 204.1(a)(1). The
Attorney General or her designee is then required to investigate the petition. 8
U.S.C. § 1154(b). If the facts stated in the petition are true and the beneficiary is
eligible for preference status, “the Attorney General shall . . . approve the
petition.” Id. Once the petition is approved, the foreign-national beneficiary can
2

for his wife. (Id.) Thereafter, Kimiki allegedly moved to the United States in approximately
2008. (Id. ¶ 15.) On June 18, 2012, the USCIS allegedly approved a Form I-130, Petition for
Alien Relative as to Kimiki. (Id. at 4 ¶ 16.)
On November 18, 2013, Plaintiffs allege that they received a notice conveying the
USCIS’s intent to revoke Kimiki’s immigrant visa pursuant to the Adam Walsh Act. (Id. ¶ 19;
see also ECF No. 6-2 at 2.) Plaintiffs further allege that Polfliet responded to the notice of
revocation, but the USCIS nevertheless revoked Kimiki’s status on September 2, 2015, finding
that Polfliet was ineligible to file a visa petition under the INA because of his child pornography
conviction. (ECF Nos. 1 at 4 ¶¶ 21–22 & 6-2 at 2–3.) As part of its findings in accordance with
the Adam Walsh Act, the USCIS observed that Polfliet’s “evidence does not demonstrate that
you pose no risk to the safety and well-being of your beneficiary or beneficiaries.” (ECF No. 6-2
apply for permanent-resident status. See 8 C.F.R. § 245.2. The petitioner and
beneficiary bear the burden of proving their eligibility under the INA. 8 U.S.C. §
1361.
In 2006, Congress passed the Adam Walsh Act “[t]o protect the public from sex
offenders and offenders against children.” Pub. L. No. 109–248, § 102, 120 Stat.
587, 590 (2006). Among other reforms, the Adam Walsh Act amended the INA
to prohibit a citizen from filing a Form I–130 visa petition for an alien if he or she
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 . . . . 8 U.S.C. §
1154(a)(1)(A)(viii)(I).
The term “specified offense against a minor” includes “conduct that by its nature
is a sex offense against a minor.” 42 U.S.C. § 16911(7)(I). The Secretary has
delegated to the USCIS the discretion to determine whether the petitioner “poses
no risk” to the beneficiary. Dep’t of Homeland Sec. Delegation No. 0150.1(II)(H)
(June 5, 2003); see 8 C.F.R. § 2.1. Even if none of the intended beneficiaries is a
child, the USCIS has interpreted the Adam Walsh Act to require that the
petitioner “prove, beyond any reasonable doubt, that he or she poses no risk to the
intended adult beneficiary.”
Bremer v. Johnson, 834 F.3d 925, 927 (8th Cir. 2016).

3

at 6.) On July 18, 2016, the Board of Immigration Appeals affirmed the USCIS’s revocation of
Kimiki’s visa. (ECF Nos. 1 at 4 ¶¶ 23–24 & 6-3 at 3.)
As a result of the foregoing, Plaintiffs filed an action in this court on October 11, 2016,
alleging that application of the Adam Walsh Act to Kimiki’s immigrant visa was arbitrary and
capricious (“Count One”) under the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701706,6 improperly retroactive (“Count Four”) and violated Plaintiffs’ procedural due process
rights (“Counts Two and Three”) protected by the Fifth Amendment to the United States
Constitution. (ECF No. 1 at 4 ¶ 25–7 ¶ 54.) Additionally, Plaintiffs allege that they are entitled
to an award of attorney’s fees (“Count Five”) pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412. (Id. at 7 ¶¶ 55–59.) On January 13, 2017, Defendants filed the
instant Motion to Dismiss. (ECF No. 11.) The parties then proceeded to respond, reply, and file
supplemental authorities for the court’s review. (ECF Nos. 11, 14, 16, 19 & 20.)
II.

JURISDICTION

This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, as a federal
question under the APA is presented. (ECF No. 1 at 4 ¶ 25–5 ¶ 37.) Additionally, Plaintiffs
demonstrate the court’s jurisdiction through their allegations of a deprivation of their Fifth
Amendment right to procedural due process. (ECF No. 1 at 6 ¶¶ 43–47.)
III.
A.

LEGAL STANDARD

Motions to Dismiss Pursuant to Rule 12(b)(1) for Lack of Subject Matter Jurisdiction
Article III of the Constitution limits the jurisdiction of the federal courts to the

6

The APA provides a mechanism for judicial review of executive action by waiving sovereign
immunity in cases in which plaintiffs sue the United States for relief other than money damages.
5 U.S.C. § 702. The scope of this waiver, however, is not unlimited. Rather, the APA limits
review to “[a]gency action made reviewable by statute and final agency action for which there is
no other adequate remedy in a court.” Id. at § 704. Thus, if a statute precludes judicial review or
the “agency action is committed to agency discretion by law,” the court cannot review it. Id. at §
701(a).
4

consideration of “cases” and “controversies.” U.S. Const. art. III, § 2. “Federal courts are courts
of limited subject matter jurisdiction, and as such there is no presumption that the court has
jurisdiction.” Pinkley, Inc. v. City of Fredrick, Md., 191 F.3d 394, 399 (4th Cir. 1999). A Rule
12(b)(1) motion for lack of subject matter jurisdiction raises the fundamental question of whether
a court has jurisdiction to adjudicate the matter before it.

Fed. R. Civ. P. 12(b)(1).

In

determining whether jurisdiction exists, the court is to “regard the pleadings’ allegations as mere
evidence on the issue, and may consider evidence outside the pleadings without converting the
proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v.
United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697 F.2d 1213, 1219
(4th Cir. 1982)). “The moving party should prevail only if the material jurisdictional facts are
not in dispute and the moving party is entitled to prevail as a matter of law.” Id. (citation
omitted). The plaintiff bears the burden of proof on questions of subject matter jurisdiction. See
Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).
B.

Motions to Dismiss Pursuant to Rule 12(b)(6) for Failure to State a Claim
A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which

relief can be granted “challenges the legal sufficiency of a complaint.” Francis v. Giacomelli,
588 F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) . . . does
not resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses.”). “In considering a 12(b)(6) challenge to the sufficiency of a complaint, this Rule
must be applied in conjunction with the liberal pleading standard set forth in Federal Rule of
Civil Procedure 8(a).” Jenkins v. Fed. Bureau of Prisons, C/A No. 3:10-1968-CMC-JRM, 2011
WL 4482074, at *2 (D.S.C. Sept. 26, 2011). Rule 8(a) provides that to be legally sufficient, a

5

pleading must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2).
A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim should not be
granted unless it appears certain that the plaintiff can prove no set of facts that would support her
claim and would entitle her to relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.
1993). When considering a motion to dismiss, the court should accept as true all well-pleaded
allegations and should view the complaint in a light most favorable to the plaintiff. Ostrzenski v.
Seigel, 177 F.3d 245, 251 (4th Cir. 1999); Mylan Labs., Inc., 7 F.3d at 1134. “In so doing, a
court may consider documents attached to the complaint or the motion to dismiss ‘so long as
they are integral to the complaint and authentic.’” Kensington Volunteer Fire Dep’t, Inc. v.
Montgomery Cty., Md., 684 F.3d 462, 467 (4th Cir. 2012) (quoting Philips v. Pitt Cty. Mem’l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009)). “To survive a motion to dismiss, 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) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility 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.
IV.
A.

ANALYSIS

The Parties’ Arguments
1. Defendants
Defendants move the court to dismiss the Complaint pursuant to either Rule 12(b)(1) or

12(b)(6). (ECF No. 6 at 1.) First, Defendants argue that they are entitled to dismissal of Counts
One and Four because the court lacks jurisdiction to consider these claims.

Specifically,

Defendants assert that the court is barred from reviewing their decision “because both USCIS’s
6

decision to revoke the petition under 8 U.S.C. § 1155,7 and its ‘no risk’ determination under 8
U.S.C. § 1154,8 are discretionary agency decisions specifically exempted from judicial review by
that statutory provision.” (ECF No. 6 at 7–8 (citing 8 U.S.C. § 1252(a)(2)(B)(ii)9).) In this
regard, Defendants assert that “all claims in Plaintiffs’ Complaint that challenge USCIS’s
discretionary ‘no risk’ determination and consequent denial of the I-130 fall within the scope of
§ 1252(a)(2)(B)’s bar on judicial review.” (Id. at 12 (citing, e.g., 8 U.S.C. § 1154(a)(1)(A)(viii);
Gao v. Holder, 595 F.3d 549, 557 (4th Cir. 2010)).)
Defendants also move the court to dismiss the Complaint pursuant to Rule 12(b)(6).
(ECF No. 6 at 17.) First, Defendants assert that Plaintiffs’ allegations–“(1) the Adam Walsh Act
does not apply to convictions in general courts-martial before a military judge sitting alone, (2)
Defendants’ decisions are contrary to Polfliet and Kimiki’s constitutional rights, (3) Defendants’
decisions are in excess of statutory jurisdiction, (4) ‘Defendants’ decisions ignore important
facts,’ (5) Defendants’ decisions did not follow procedures required by law, and (6) ‘Defendants’
decisions violate the Administrative Procedure Act for various other reasons.’”–do not establish
that the USCIS’s decision regarding Kimiki’s immigration visa was arbitrary and capricious.
(ECF No. 6 at 17 (citing ECF No. 1 at 4 ¶ 25–5 ¶ 37).) Defendants next assert that they are
7

Section 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. “Such revocation shall be effective as of the
date of approval of any such petition.” Id.
8
Under 8 U.S.C. § 1154(a)(1)(A)(viii)(I), “[c]lause (i) [allowing a citizen to file an immigrant
status petition] shall not apply to a citizen of the United States 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 a petition described in clause (i) is filed.
9
Section 1252(a)(2)(B)(ii) states in relevant part 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, other than the granting of relief under section
1158(a) of this title.” 8 U.S.C. § 1252(a)(2)(B)(ii).
7

entitled to dismissal of Counts Two and Three alleging violation of procedural due process on
the basis that Plaintiffs are unable to demonstrate that they have “a liberty or property interest in
an approved Family Visa petition.” (Id. at 20, 21 (citing, e.g., Town of Castle Rock v. Gonzales,
545 U.S. 748, 756 (2005) (“[A] benefit is not a protected entitlement if government officials may
grant or deny it in their discretion.”)).) As to Plaintiffs’ fourth cause of action for improper
retroactivity, Defendants assert that it is an impermissible claim “because 8 U.S.C. § 1154
specifically allows USCIS to revoke an approval of a visa petition under 8 U.S.C. § 1154 ‘at any
time,’ for what the agency ‘deems to be good and sufficient cause,’ id., the statute permits no
claim of impermissibly retroactive revocation separate and apart from a proscribed attack on the
unreviewable decision itself.” (ECF No. 6 at 21–22.) Finally, Defendants assert that Plaintiff’s
fifth claim seeking attorney’s fees under the EAJA is premature because “it depends upon
Plaintiffs prevailing in this litigation and on a timely application made thereafter.” (ECF No. 6 at
22 n.9 (citing 28 U.S.C. § 2412(d)(1)(A), (B)).) Therefore, Defendants request that the court
dismiss Plaintiffs’ Complaint for failure to state a claim. (Id. at 22.)
2. Plaintiffs
Plaintiffs oppose Defendants’ Motion to Dismiss arguing that “the [c]ourt has jurisdiction
to review revocation decisions under section 1155 because [neither] section 1155 [][nor its
implementing regulations] specify that visa revocations are in the discretion of the Attorney
General.” (ECF No. 11 at 1 (citing id.), 4 (citing 8 C.F.R. §§ 205.1, 205.2).) Thus, Plaintiffs
assert that the court “has jurisdiction to review USCIS’s revocation of the Polfliet’s petition on
behalf of Kimiki.” (Id. at 4.)
Plaintiffs next assert that section 1252(a)(2)(B)(ii) does not preclude review of their
claims because they are in no way challenging the “no risk” determination and thus Defendants’

8

arguments as to this issue are without merit. (ECF No. 11 at 5, 7.) In this regard, Plaintiffs
assert that the true dispute is “whether USCIS’s determination that section 1154(a)(1)[(A)](viii)
applies to Polfliet and Kimiki violates the Administrative Procedure Act, the United States
Constitution, or the rule against prejudicial retroactive application of a new agency rule.” (ECF
No. 11 at 6 (citing ECF No. 1 at 4 ¶ 25–7 ¶ 54).)
In response to Defendants’ Rule 12(b)(6) Motion, Plaintiffs argue that the Motion as to
Count One is premature “because this [c]ourt cannot fully adjudicate these claims without
reviewing the certified administrative record underlying the government’s decision.” (ECF No.
11 at 8.) Plaintiffs next argue that the court should not dismiss Counts Two and Three because
the United States Supreme Court has rejected Defendants’ contention that no due process interest
exists when the government has discretion to revoke a benefit. (Id. at 11 (citing Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 541 (1985)).) Finally, Plaintiffs contend that they have
properly alleged a claim for improper retroactivity since their allegations demonstrate that
Kimiki’s visa was revoked based on Defendants’ application of a new rule–section
1154(a)(1)(A)(viii)–“to convictions that occurred before its enactment.” (ECF No. 11 at 12.)
Therefore, Plaintiffs request that the court “deny the government’s motion to dismiss, order the
government to file the administrative record, and set a briefing schedule.”10 (Id.)
B.

The Court’s Review
The court observes that Defendants filed a Notice of Supplemental Authorities (ECF No.

16) in which they asserted that the United States Court of Appeals for the Fourth Circuit had
issued a published decision on March 8, 2017, that was controlling on this matter. In Roland v.
U.S. Citizenship & Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017), the Fourth Circuit
10

Plaintiffs do not appear to dispute that Count Five’s request for attorney’s fees under the EAJA
is premature. As a result of the court’s below-stated findings, Defendants are entitled to
dismissal of Count Five pursuant to Rule 12(b)(1).
9

provided the following observations:
The Immigration and Nationality Act (“INA”) allows citizens via Form I-130 to
petition for immediate relative status on behalf of their alien spouses so that the
alien spouses may immigrate to the United States.
See 8 U.S.C. §
1154(a)(1)(A)(i). The term “immediate relatives” includes the “children, spouses,
and parents of a citizen of the United States.” § 1151(b)(2)(A)(i). Petitioners bear
the burden of proving eligibility. See § 1361. In 2006, Congress passed the
A[dam] W[alsh] A[ct], which precludes citizens from petitioning for immediate
relative status if they were convicted of a “specified offense against a minor.” §
1154(a)(1)(A)(viii)(I). An offense against a minor is broadly defined, and
includes “[a]ny conduct that by its nature is a sex offense against a minor.” 42
U.S.C. § 16911(7). The only exception to that prohibition is if the USCIS, in its
“sole and unreviewable discretion,” determines that the petitioning citizen proves
beyond a reasonable doubt that he or she poses “no risk” to the alien spouse's
safety and well-being. 8 U.S.C. § 1154(a)(1)(A)(viii)(I) (emphasis supplied); see
U.S. Dep’t of Homeland Sec., No. HQDOMO 70/1-P, Guidance for Adjudication
of Family Based Petitions (Feb. 8, 2007).
The statute upon which jurisdiction hinges in this case is 8 U.S.C. § 1252.
Section 1252(a)(2)(B)(ii) states, “no court shall have jurisdiction to review”
certain discretionary actions or decisions by the Secretary. As delegated to it by
the Secretary, the USCIS has “sole and unreviewable discretion” to determine
whether a petitioner poses no risk, meaning courts lack jurisdiction to review that
discretionary decision. § 1154(a)(1)(A)(viii)(I). Section 1252(a)(2)(D) does
permit judicial review of constitutional claims or legal questions, but only when
“raised upon a petition for review filed with an appropriate court of appeals”
during removal proceedings. Lee, 592 F.3d at 620 (4th Cir. 2010) (quoting 8
U.S.C. § 1252(a)(2)(D)). Absent ambiguity, “our analysis begins and ends with
the statute’s plain language.” Ignacio v. United States, 674 F.3d 252, 257 (4th
Cir. 2012). A plain reading of the statute at issue here and our precedent
forecloses judicial review in this case. It is clear that the USCIS has “sole and
unreviewable discretion” to determine whether a petitioner poses no risk. 8
U.S.C. § 1154(a)(1)(A)(viii)(I). Section 1154 thus specifically deems the no-risk
determination as discretionary. Pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), “no
court shall have jurisdiction to review” certain discretionary decisions made by
the USCIS, which here includes the no-risk determination. Therefore, the district
court lacked jurisdiction to review that determination.
Roland, 850 F.3d at 629. Plaintiffs disagree that Roland is controlling. Plaintiffs assert that
Roland is inapplicable because they are challenging “USCIS’s arbitrary application of section
1154(a)(1)[(A)](viii), not USCIS’s separate and subsequent no-risk determination.” (ECF No.
19 at 2.)

10

According to section 1155, “[t]he Secretary of Homeland Security [and by sub-delegation
the Director of the USCIS] 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.

Moreover, under section 1252(a)(2)(B)(ii), the court is statutorily prohibited from

reviewing discretionary decisions by the Attorney General or the Director of the USCIS. 8
U.S.C. § 1252(a)(2)(B)(ii); see also 5 U.S.C. § 701(a)(2) (prohibiting judicial review when
“agency action is committed to agency discretion by law”). In this matter, Plaintiffs attempt to
circumvent the aforementioned prohibition on court review asserting that their claims regarding
the USCIS’s decision to approve and then revoke Kimiki’s immigration visa are not a challenge
to the USCIS’s exercise of discretion.
Upon review, it appears that the Fourth Circuit did not in Roland nor has it in any other
opinion addressed whether the revocation of a previously approved immigration visa is a
discretionary decision that a district court lacks jurisdiction to review. However, “seven other
Circuit courts have held that the language of § 1155 ‘plainly signifies [that a decision to revoke
an immigrant visa is] a discretionary decision.’” Magalhaes v. Napolitano, 941 F. Supp. 2d 150,
152 (D. Mass. 2013) (citing El–Khader v. Monica, 366 F.3d 562, 567 (7th Cir. 2004) (“[T]he
discretionary nature of the decision is apparent from the plain language of the statute.”);
Mehanna v. U.S. Citizenship & Immigration Servs., 677 F.3d 312, 313 (6th Cir. 2012) (“We now
join the majority of our sister circuits and hold that the Secretary’s decision to revoke a visa
petition under section 1155 is an act of discretion that Congress has removed from our review.”);
Green v. Napolitano, 627 F.3d 1341, 1346 (10th Cir. 2010) (“In sum, the decision to revoke an
immigrant visa under § 1155 is an act of discretion that Congress has withheld from federal court
review.”); Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir. 2009); Sands v. U.S. Dep’t of

11

Homeland Sec., 308 F. App’x 418, 419–20 (11th Cir. 2009); Ghanem v. Upchurch, 481 F.3d
222, 224 (5th Cir. 2007) (“The statutory language indicates that the decision is left to the
discretion of the Secretary.”); Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 206 (3d Cir.
2006) (“The jurisdiction granted by 28 U.S.C. §§ 1331 & 2201 and 5 U.S.C. § 702 to review
constitutional questions is immediately precluded by the opening words of 8 U.S.C. §
1252(a)(2)(B), which states that ‘[n]otwithstanding any other provision of law, . . . no court shall
have jurisdiction to review . . . decision [s] . . . specified in this subchapter to be in the discretion
of the . . . Attorney General or the Secretary of Homeland Security.’”) (external citation
omitted)). Considering the aforementioned decisions in conjunction with its findings in Roland,
the Fourth Circuit would most likely agree that the revocation of an immigrant visa under the
circumstances presented in this matter is a purely discretionary decision. Therefore, despite
Plaintiffs’ arguments to the contrary, the court finds that it lacks jurisdiction to review the
USCIS’s decision to revoke Kimiki’s immigrant visa and, as a result, Defendants are entitled to
dismissal of Counts One and Four pursuant to Rule 12(b)(1).
As to Counts Two and Three alleging violation of procedural due process, the court
observes that section 1252(a)(2)(D) states without qualification that “constitutional claims or
questions of law” are to be “raised upon a petition for review filed with an appropriate court of
appeals.” 8 U.S.C. § 1252(a)(2)(D); see also Lee v. U.S. Citizenship & Immigration Servs., 592
F.3d 612, 620 (4th Cir. 2010) (“Even if we assume Lee’s challenge raises a reviewable question
of law, § 1252(a)(2)(D) does not give Lee a jurisdictional bootstrap into district court. The
express language of the statute requires Lee to raise any constitutional or legal questions “upon a
petition for review filed with an appropriate court of appeals.”) (citing 8 U.S.C. §
1252(a)(2)(D)).

Consequently, it appears that the aforementioned statutory law requires

12

Plaintiffs to raise their procedural due process claims in the Fourth Circuit in accordance with
section 1252(a)(2)(D), and, therefore, this court does not have jurisdiction to review these due
process claims.
V.

CONCLUSION

For the reasons set forth above, the court hereby GRANTS Defendants’ Motion to
Dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and DISMISSES the
Complaint with prejudice.11 (ECF No. 6.) Because the court lacks subject matter jurisdiction,
the court DENIES AS MOOT Defendants’ Motion to Dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
IT IS SO ORDERED.

United States District Judge
September 28, 2017
Columbia, South Carolina

11

Generally, when a court grants a party’s Rule 12(b)(1) motion to dismiss, the decision does not
constitute a judgment on the merits, and is therefore without claim preclusive or res judicata
effect. Farquhur v. United States, C/A No. 1:07cv1033, 2007 WL 4233492, at *2 (E.D. Va. Nov.
28, 2007) (citing Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995)). However, in
Roland, the Fourth Circuit affirmed the district court’s dismissal with prejudice for lack of
subject matter jurisdiction when, like in this case, a “statutory provision eliminates judicial
review of discretionary decisions made by” an immigration agency. Roland, 850 F.3d at 628.
13