Osayi v. Lynch

Filing 29

Memorandum Opinion and Order denying 27 Motion to Dismiss the Complaint. The court converts the defendants' motion to dismiss to a motion for summary judgment. Responses due by 12/29/2016. Replies due by 1/12/2017. (Ordered by Senior Judge A. Joe Fish on 12/8/2016) (rekc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

IMUENTINYAN FRANK OSAYI,
Beneficiary of a visa petition filed by
Barbara Earlene Osayi, ET AL.,
Plaintiffs,
VS.
LORETTA LYNCH, U.S. Attorney
General, ET AL.,
Defendants.

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CIVIL ACTION NO.
3:15-CV-2439-G

MEMORANDUM OPINION AND ORDER
Before the court is the motion of the defendants to dismiss the claims of the
plaintiffs Imuetinyan Frank Osayi and Barbara Osayi pursuant to FED. R. CIV. P.
12(b)(1) and 12(b)(6). For the reasons stated below, the motion to dismiss pursuant
to FED. R. CIV. P. 12(b)(1) is denied, and the court will convert the motion to dismiss
pursuant to FED. R. CIV. P. 12(b)(6) to a motion for summary judgment.
I. BACKGROUND
Barbara Osayi is a United States citizen. Complaint ¶ 12 (docket entry 17).
Imuetinyan Frank Osayi is a native of Nigeria. Defendants’ Brief in Support of Their
Motion to Dismiss the Complaint (“Motion”) at 1 (docket entry 27).

On October 11, 2006, Barbara Osayi and Imuetinyan Frank Osayi married.
Complaint ¶ 1. Imuetinyan Frank Osayi previously had been married to Ikechiuka
Beatrice Osayi, a noncitizen, with whom he has two children. Motion at 1.
Imuetinyan Frank Osayi sought lawful permanent resident status on the basis
of his marriage to Barbara Osayi, a United States citizen. Motion at 2. To that end,
Barbara Osayi filed three Form I-130 petitions with the United States Citizenship
and Immigration Services (“USCIS”) on behalf of Imuetinyan Frank Osayi. Id.
On December 7, 2007, Barbara Osayi filed the first I-130 petition. Complaint
¶ 12. In June 2008, USCIS interviewed the Osayis and found inconsistencies in their
testimony. Motion at 2. USCIS subsequently gave Barbara Osayi a chance to
reconcile these inconsistencies. Id. On May 30, 2009, USCIS denied the petition
and held that “Mrs. Osayi failed to meet her burden of proving the bona fides of her
marriage and concluded that the couple entered into the marriage to evade
immigration law.” Id. at 2; see also Complaint ¶ 20. On June 29, 2009, Barbara Osayi
filed an appeal of this decision to the Board of Immigration Appeals (“BIA”), she but
later withdrew her appeal. Motion at 2; Complaint ¶¶ 21, 31.
On November 2, 2009, Barbara Osayi filed the second I-130 petition.
Complaint ¶ 22. In March of 2010, USCIS again interviewed the Osayis and found
inconsistencies in their testimony. Motion at 2-3. On November 23, 2010, USCIS
denied Barbara Osayi’s second petition. Id. at 3; Complaint ¶ 24. On December 23,

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2010, Barbara Osayi filed an appeal of this decision to the BIA. Id. ¶ 25. USCIS
then reopened the case but ultimately denied the petition on March 4, 2011.
Motion at 3; Complaint ¶ 26. On April 5, 2011, Barbara Osayi filed another appeal
with the BIA based on this second denial of her second petition, but she later
withdrew this appeal. Motion at 3; Complaint ¶¶ 27, 31.
On May 24, 2011, Barbara Osayi filed a third I-130 petition. Complaint ¶ 28.
On September 7, 2011, USCIS approved the petition without an interview. Motion
at 3; Complaint ¶ 29. Thereafter, USCIS interviewed the Osayis and affirmed
approval of the third petition in December of 2011. Motion at 3. On June 29, 2013,
USCIS issued a Notice of Intent to Revoke Petition Three “after an investigation and
site visits conducted in 2012 and 2013 revealed numerous discrepancies
in the Osayis’ sworn testimony and submissions to USCIS.” Id.; see also Complaint
¶ 36. On September 7, 2013, USCIS revoked Barbara Osayi’s third petition
“concluding that Mrs. Osayi did not meet her burden of proving the bona fides of her
marriage and that it was ‘established for the sole purpose of evading immigration
laws.’” Motion at 3. For example, USCIS discovered that Imuetinyan Frank Osayi
in fact had continued to reside with his ex-wife. Id. at 4. Barbara Osayi appealed
this decision to the BIA. Id. The BIA dismissed Barbara Osayi’s appeal and held that
USCIS’s revocation was based on good and sufficient cause. Id.

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The Osayis challenge the BIA’s decision to affirm USCIS’s revocation of
Barbara Osayi’s third petition and assert claims under the Administrative Procedures
Act, 5 U.S.C. § 500, et seq. (“APA”) and Fourteenth Amendment to the United States
Constitution. See generally Complaint. The defendants move to dismiss these claims
pursuant to FED. R. CIV. P. 12(b)(1) and (12)(b)(6). Neither Imuetinyan Frank
Osayi nor Barbara Osayi responded to the motion.
II. ANALYSIS
A. Motion to Dismiss Pursuant to Rule 12(b)(1)
Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life
Insurance Company of America, 511 U.S. 375, 377 (1994); Owen Equipment and Erection
Company v. Kroger, 437 U.S. 365, 374 (1978). A federal court may exercise
jurisdiction over cases only as expressly provided by the Constitution and laws of the
United States. See U.S. CONST. art. III §§ 1-2; see also Kokkonen, 511 U.S. at 377.
Federal law gives the federal district courts original jurisdiction over “all civil actions
arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331. Moreover, a party seeking relief in a federal district court bears the burden
of establishing the subject matter jurisdiction of that court. United States v. Hays, 515
U.S. 737, 743 (1995); McNutt v. General Motors Acceptance Corporation of Indiana, Inc.,
298 U.S. 178, 189 (1936); Langley v. Jackson State University, 14 F.3d 1070, 1073 (5th
Cir.), cert. denied, 513 U.S. 811 (1994).

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Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes the dismissal
of a case for lack of jurisdiction over the subject matter. See FED. R. CIV. P. 12(b)(1).
A motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction
must be considered by the court before any other challenge because “the court must
find jurisdiction before determining the validity of a claim.” Moran v. Kingdom of
Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994) (internal citation omitted); see also
Ruhrgas AG v. Marathon Oil Company, 526 U.S. 574, 577 (1999) (“The requirement
that jurisdiction be established as a threshold matter . . . is inflexible and without
exception”) (citation and internal quotation marks omitted). On a Rule 12(b)(1)
motion, which “concerns the court’s ‘very power to hear the case . . . [,] the trial
court is free to weigh the evidence and satisfy itself as to the existence of its power to
hear the case.’” MDPhysicians & Associates, Inc. v. State Board of Insurance, 957 F.2d
178, 181 (5th Cir.) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert.
denied, 454 U.S. 897 (1981)), cert. denied, 506 U.S. 861 (1992). In ruling on a
motion to dismiss under Rule 12(b)(1), the court may rely on: “1) the complaint
alone; 2) the complaint supplemented by undisputed facts; or 3) the complaint
supplemented by undisputed facts and the court’s resolution of disputed facts.”
MCG, Inc. v. Great Western Energy Corporation, 896 F.2d 170, 176 (5th Cir. 1990)
(citing Williamson, 645 F.2d at 413). Once jurisdiction is challenged, the burden
rests upon the party seeking to invoke the court’s jurisdiction to prove that

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jurisdiction is proper. Boudreau v. United States, 53 F.3d 81, 82 (5th Cir. 1995), cert.
denied, 516 U.S. 1071.
The plaintiffs assert that this court has jurisdiction to review their case
pursuant to the Mandamus Act, 28 U.S.C. § 1361, Declaratory Judgment Act, 28
U.S.C. § 2201, the Administrative Procedures Act (“APA”), 5 U.S.C. § 706(1), and
federal question jurisdiction under 28 U.S.C. § 1331. Complaint ¶ 9.
The federal Declaratory Judgment Act provides that “[i]n a case of actual
controversy within its jurisdiction, . . . any court of the United States, upon the filing
of an appropriate pleading, may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further relief is or could be
sought.” 28 U.S.C. § 2201. “The federal Declaratory Judgment Act . . . does not
create a substantive cause of action”; rather, a declaratory judgment action is purely a
“vehicle that allows a party to obtain an early adjudication of an actual controversy
arising under other substantive law.” Metropcs Wireless, Inc. v. Virgin Mobile USA,
L.P., No. 3:08-CV-1658-D, 2009 WL 3075205, at *19 (N.D. Tex. Sept. 25, 2009)
(Fitzwater, Chief J.) (internal quotations and citations omitted). The act imposes no
duty to declare rights. Id. Instead, it provides “[f]ederal courts [with] broad
discretion to grant or refuse a declaratory judgment.” Id.
The Mandamus Act vests courts with original jurisdiction “to compel an officer
or employee of the United States or any agency thereof to perform a duty owed to

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the plaintiff.” 28 U.S.C. § 1361. The remedy of mandamus is generally viewed as “a
drastic one, to be invoked only in extraordinary situations.” Kerr v. United States
District Court, 426 U.S. 394, 402 (1976). Mandamus relief is appropriate “only when
the plaintiff’s claim is clear and certain and the duty of the officer is ministerial and
so plainly prescribed as to be free from doubt. Giddings v. Chandler, 979 F.2d 1104,
1108 (5th Cir. 1992) (internal quotation and citations omitted).
Because this court’s jurisdiction is proper under 28 U.S.C. § 1331, the
defendants’ motion to dismiss the plaintiffs’ claims pursuant to FED. R. CIV. P.
12(b)(1) is denied. The court will entertain further briefing on applicability of the
Declaratory Judgment Act and the Mandamus Act to this case when it considers the
defendants’ motion for summary judgment. See infra.
B. Motion to Dismiss Pursuant to Rule 12(b)(6)
FED. R. CIV. P. 12(b)(6) authorizes dismissal of a complaint “for failure to
state a claim upon which relief can be granted.” “In considering a motion to dismiss
for failure to state a claim, a district court must limit itself to the contents of the
pleadings, including attachments thereto.” Collins v. Morgan Stanley Dean Witter, 224
F.3d 496, 498 (5th Cir. 2000) (citing FED. R. CIV. P. 12(b)(6)). “To survive a
12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to
relief that is plausible on its face.’” In re Katrina Canal Breaches Litigation, 495 F.3d
191, 205 (5th Cir. 2007) (quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 544,

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570 (2007)), cert. denied, 552 U.S. 1182 (2008). “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 entitlement to relief requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555 (internal citation, quotations marks,
and brackets omitted). “Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” In re Katrina Canal, 495 F.3d at 205
(quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). “The court
accepts well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff.” Id. (quoting Martin K. By Construction Company, Inc. v. Dallas Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir. 2004)) (internal quotation marks omitted).
Under FED. R. CIV. P. 12(d), “[i]f, on a motion under Rule 12(b)(6) . . .,
matters outside the pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule 56.” In ruling on
the defendants’ motion, the court will consider matters outside the pleadings. The
court thereby converts the defendants’ motion to dismiss pursuant to FED. R. CIV. P.
12(b)(6) to a motion for summary judgment.

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III. CONCLUSION
For the reasons discussed, the defendants’ motion to dismiss plaintiffs’ claims
for lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1) is
DENIED. The court converts the defendants’ motion to dismiss pursuant to FED. R.
CIV. P. 12(b)(6) to a motion for summary judgment. The plaintiffs shall
electronically file their response to the motion for summary judgment no later than
December 29, 2016. The defendants shall electronically file their reply no later
than January 12, 2017.
SO ORDERED.
December 8, 2016.
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A. JOE FISH
Senior United States District Judge

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