Khamisani v. Holder et al
Filing
101
AMENDED MEMORANDUM OPINION: Granting in part, denying in part 19 Motion for Partial Dismissal.(Signed by Magistrate Judge Nancy K. Johnson) Parties notified.(sbutler, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IKE KHAMISANI and
K.B. AFFORDABLE, INC.,
§
§
§
§
§
§
§
§
§
§
Plaintiffs,
v.
ERIC HOLDER, et al.,
Defendants.
CIVIL ACTION NO. H-11-3485
AMENDED MEMORANDUM OPINION
Pending before the court1 is Defendants’ Motion for Partial
Dismissal
(Doc.
Plaintiffs’
19).
The
response,
court
Defendants’
filings, and the applicable law.
has
considered
reply,
all
the
other
motion,
relevant
For the reasons set forth below,
the court GRANTS IN PART AND DENIES IN PART Defendants’ motion.
I.
Plaintiffs
filed
Case Background
this
action
challenging
adverse
administrative decisions by the Department of Homeland Security
(“DHS”),
U.S.
Citizenship
and
Immigration
Services
(“USCIS”)
regarding the denials of a Form I-140 Petition for Alien Worker
(“I-140”) filed by Plaintiff K.B. Affordable, Inc., (“KBA”) on
behalf of Plaintiff Ike Khamisani (“Khamisani”) and a Form I-485
Application to Register Permanent Residence or Adjust Status (“I485”) filed by Plaintiff Khamisani, which required the approval of
1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Doc. 11.
the I-140.
The parties agree that Plaintiff Khamisani entered the United
States on a visitor’s visa.2
On December 20, 2004, Plaintiffs
concurrently filed an I-140 and an I-485.3
In August 2005, the
Texas Service Center of the USCIS issued an intent to deny both
petitions and, in November 2005, denied them both.4
According to
the amended complaint, “Plaintiff [sic] appealed the decision to
the Administrative Appeals Office [(“AAO”),] and the AAO denied the
appeal on May 12, 2006.”5
According to the answer, Plaintiff KBA
appealed the denial of the I-140 to the AAO, and the AAO dismissed
the appeal on May 12, 2006.6
Plaintiffs filed their original complaint on September 26,
2011, and, by agreement of the parties and with leave of court,
amended in February 2012.7
Plaintiffs seek relief from the USCIS’s
decisions pursuant to the Administrative Procedures Act8 (“APA”)
2
See Doc. 13, Pls.’ Am. Compl., ¶ 9; Doc. 18, Defs.’ Answer, ¶ 9.
Plaintiffs allege that he entered on June 16, 2004, and Defendants deny that he
entered on that date. Compare Doc. 13, Pls.’ Am. Compl., ¶ 9 with Doc. 18,
Defs.’ Answer, ¶ 9.
3
Doc. 13, Pls.’ Am. Compl., ¶ 13. Defendants admitted that Plaintiffs
filed these petitions but assert that the I-485 was filed on December 20, 2004,
and the I-140 was filed on December 21, 2004. Doc. 18, Defs.’ Answer ¶ 13.
4
Doc. 13, Pls.’ Am. Compl., ¶¶ 14, 15; Doc. 18, Defs.’ Answer, ¶¶ 14,
5
Doc. 13, Pls.’ Am. Compl., ¶ 16.
6
See Doc. 18, Defs.’ Answer, ¶ 16.
15.
7
See Doc. 1, Pls.’ Original Compl., Doc. 6, Jt. Mot. for Extension of
Time; Doc. 7, Order Dated Dec. 9, 2011.
8
5 U.S.C. §§ 701-706.
2
and the Declaratory Judgment Act9 (“DJA”).10
Plaintiffs ask the
court to direct the USCIS to reverse its prior denials.11
Defendants answered Plaintiffs’ amended complaint on March 9,
2012, and, three days later, filed the pending motion to dismiss.12
At
about
the
same
time,
Defendants
submitted
the
Certified
Administrative Record.13
After the parties completed briefing on
the
they
motion
to
dismiss,
filed
cross-motions
for
summary
judgment.14
The court addresses the motion to dismiss at this time and
considers the parties’ motions for summary judgment in a separate
memorandum opinion.
II.
Legal Standards
“Federal courts are courts of limited jurisdiction” and may
exercise jurisdiction over cases only as authorized by the United
States Constitution and the jurisdictional statutes.
Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also
Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
The
9
28 U.S.C. §§ 2201-2202.
10
See Doc. 13, Pls.’ Am. Compl., ¶¶ 29, 30.
11
See generally id. ¶¶ 30, 32.
12
See Doc. 18, Defs.’ Answer; Doc. 19, Defs.’ Mot. for Partial
Dismissal.
13
See Doc. 20, Notice of Filing Certified Admin. R.; Docs. 21-71,
Sealed Certified Admin. R.
14
See Doc. 86, Pls.’ Mot. for Summ. J.; Doc. 87, Defs.’ Mot. for Summ.
J.
3
court’s jurisdiction covers only actual cases or controversies, and
standing is an element of the case-or-controversy requirement.
U.S. Const. art. III § 2; Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992); see also McCall v. Dretke, 390 F.3d 358, 361 (5th
Cir. 2004)(explaining that standing is an essential component of
federal
subject
plaintiff
matter
must
have
jurisdiction).
suffered
“an
To
injury
have
that
standing,
is
a
concrete,
particularized, and actual or imminent; fairly traceable to the
defendant’s challenged behavior; and likely to be redressed by a
Davis v. Fed. Election Comm’n, 554 U.S. 724,
favorable ruling.”
733 (2008)(citing Lujan, 504 U.S. at 560-61).
Pursuant to the federal rules, dismissal of an action is
appropriate whenever the court lacks subject matter jurisdiction.
Fed.
R.
Civ.
P.
12(b)(1);
12(h)(3).
The
party
asserting
jurisdiction bears the burden of overcoming the presumption that
the
cause
falls
outside
the
court’s
limited
jurisdiction.
Kokkonen, 511 U.S. at 377; Howery, 243 F.3d at 916, 919.
A
dismissal of a complaint pursuant to Rule 12(b)(1) “is not a
determination of the merits and does not prevent the plaintiff from
pursuing a claim in a court that does have proper jurisdiction.”
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
The
court
may
decide
a
motion
to
dismiss
for
lack
of
jurisdiction on any of three bases: “(1) the complaint alone; (2)
the complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts plus
4
the court’s resolution of disputed facts.”
Id.
The court, in
determining whether it is properly vested with subject matter
jurisdiction, is “free to weigh the evidence and resolve factual
disputes in order to satisfy itself that it has the power to hear
the case.”
Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir.
2005)(quoting Montez v. Dep’t of Navy, 392 F.3d 147, 149 (5th Cir.
2004)).
The court should decide the Rule 12(b)(1) motion before
addressing any attack on the merits.
Ford v. NYLCare Health Plans
of Gulf Coast, Inc., 301 F.3d 329, 332 n.1 (5th Cir. 2002); Ramming,
281 F.3d at 161.
Dismissal of an action is also appropriate whenever the
complaint, on its face, fails to state a claim upon which relief
can be granted.
See Fed. R. Civ. P. 12(b)(6).
When considering a
motion to dismiss, the court should construe the allegations in the
complaint favorably to the pleader and accept as true all wellpleaded facts. Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546 (5th
Cir. 2010).
III. Analysis
The immigration statutes provide a method for U.S. employers
to acquire visas for aliens they seek to employ as executives and
managers.
See
8 U.S.C. §§ 1153(b)(1)(C), 1154(a)(1)(F).
multinational executive or manager is an alien who:
in the 3 years preceding the time of the alien’s
application for classification and admission into the
United States . . ., has been employed for at least 1
year by a firm or corporation or other legal entity or an
5
A
affiliate or subsidiary thereof and [who] seeks to enter
the United States in order to continue to render services
to the same employer or to a subsidiary or affiliate
thereof in a capacity that is managerial or executive.
8 U.S.C. § 1153(b)(1)(C).
This type of visa is not subject to the
labor certification process. Khamisani v. Holder, Civil Action No.
H-10-cv-0728, 2011 WL 1232906, at *3 (S.D. Tex. March 31, 2011);
see also 8 U.S.C. § 1153(b)(1)(C).
The prospective employer files an I-140 with the U.S. Attorney
General.
8 U.S.C. §§ 1154(a)(1)(F), 8 C.F.R. § 204.5(j)(1).
Aliens inspected and admitted into the United States may file for
adjustment of status to lawful permanent resident.
8 U.S.C. §
1255(a). The U.S. Attorney General may adjust the alien employee’s
status if he makes an application, he is eligible to receive an
immigrant visa, he is admissible for permanent residence, and a
visa is immediately available at the time of the application.
8
U.S.C. § 1255(a).
Plaintiffs seek review, pursuant to the APA and the DJA, of
the USCIS’s denials of their I-140 and I-485.
that:
Defendants argue
1) this court lacks subject matter jurisdiction under 8
U.S.C. § (“Section”) 1252(a)(2)(B) to review the USCIS’s decision
to deny Plaintiff Khamisani’s I-485; 2) Plaintiff Khamisani lacks
standing to challenge the USCIS’s decision to deny Plaintiff KBA’s
I-140; 3) U.S. Attorney General Eric H. Holder (“Holder”), former
Director of Homeland Security Tom Ridge (“Ridge”), and Director of
USCIS’s Nebraska Service Center F. Gerard Heinauer (“Heinauer”) are
6
not proper parties to this case; 4) Plaintiffs failed to state a
claim to the extent that they contend the USCIS is required to
approve the I-140 merely because it approved I-140s in similar
cases.
A.
Subject Matter Jurisdiction
In response to Defendants’ argument that this court lacks
subject matter jurisdiction to review discretionary decisions under
Section 1252(a)(2)(B), Plaintiffs counter that Defendants’ reading
of this section is “expansive” and the court has jurisdiction to
review “purely legal” determinations.15
Section
1252(a)(2)(B),
which
discretionary relief,” states in part:
is
labeled
“Denials
of
“[R]egardless of whether
the judgment, decision, or action is made in removal proceedings,
no court shall have jurisdiction to review . . . any judgment
regarding the granting of relief under section . . . 1255.”
Section
1255
provides
for
the
adjustment
nonimmigrant to legal permanent residence.
of
status
of
a
Section 1252(a)(2)(B)
also states that no court has 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 the section on asylum].”
15
Doc. 74, Pls.’ Resp. to Defs.’ Mot. for Partial Dismissal p. 9.
7
By its own terms, Section 1252(a)(2)(B) deprives courts of
jurisdiction to consider appeals of I-485 denials, as well as other
discretionary decisions.
interpretation:
The Fifth Circuit has affirmed this
“First, the district court correctly held that
under § 1252(a)(2)(B), it did not have jurisdiction to review the
decisions to deny [the plaintiff]’s I-485 application because these
determinations were ‘in the discretion of’ immigration officials
acting under authority of the Attorney General.”
Ayanbadejo v.
Chertoff, 517 F.3d 273, 276 (5th Cir. 2008); see also Odero v.
Holder, 338 Fed. App’x 432, 433 (5th Cir. 2009)(unpublished)(“Under
the plain language of the Real ID Act,16 this court does not have
jurisdiction to review ‘any judgment regarding the granting of
relief under section . . . 1255.’”); Hadwani v. Gonzales, 445 F.3d
798, 800 (5th Cir. 2006)(“[W]e join a number of our sister circuits
in holding that we lack jurisdiction over petitions for review
concerning the discretionary denial of relief under 8 U.S.C. §
1255.”).
Plaintiffs’ effort to recast their challenge as a legal one
does
nothing
to
restore
this
court’s
jurisdiction.
Section
1252(a)(2)(D) states that constitutional claims or questions of law
may be “raised upon a petition for review filed with an appropriate
court of appeals in accordance with this section.” Therefore, even
16
The Real ID Act is the name of the legislation that included the
current version of Section 1252 and took effect in May 2005.
8
if Plaintiffs are raising “purely legal” issues, this is not the
court vested with the authority to review those issues.
See 8
U.S.C. § 1252(a)(2)(D); Huerta v. Clinton, Civil Action No. H-093229, 2010 WL 565279, at *3 (S.D. Tex. Feb. 17, 2010)(unpublished).
Additionally, bringing suit pursuant to the APA and the DJA
will not restore jurisdiction.
Section 1252(a)(2)(B) expressly
states that courts are precluded from reviewing decisions on I-485s
“[n]otwithstanding
any
other
provision
of
law
(statutory
or
nonstatutory).” See also 5 U.S.C. § 701(a)(1)(stating that the APA
applies “except to the extent that . . . statutes preclude judicial
review”); Califano v. Sanders, 430 U.S. 99, 104 (1977)(stating that
the APA “is not to be interpreted as an implied grant of subjectmatter jurisdiction to review agency actions”); Volvo Trucks N.
Am., Inc. v. Crescent Ford Truck Sales, Inc., 666 F.3d 932, 938 (5th
Cir. 2012)(citing Skelly Oil Co. v. Phillips Petroleum Co., 339
U.S. 667, 672-74 (1950))(stating that the DJA is “procedural only”
and that a court “must determine if there would be grounds for
federal jurisdiction over a hypothetical suit that would have been
brought absent the availability of declaratory relief”).
This court does not have jurisdiction to entertain Plaintiff
Khamisani’s challenges to the USCIS’s decision to deny his I-485.17
17
As Defendants implicitly conceded, the court has jurisdiction to
review challenges to I-140 decisions. The authorizing statute for I-140s is not
mentioned in Section 1252(a)(2)(B) in defining which discretionary decisions are
beyond judicial review.
Cf. Ayanbadejo, 517 F.3d at 276-77 (citing Zhao v.
Gonzales,
404
F.3d
295,
303
(5th
Cir.
2005))(interpreting
Section
1252(a)(2)(B)(i) as limiting review of decisions that the statute identifies as
9
The claims related to that petition should be dismissed.
B.
Standing
Plaintiffs
argue
that
Plaintiff
Khamisani
is
a
proper
plaintiff because he has suffered a legal wrong due to agency
action, which entitles him to bring a suit pursuant to the APA.
Plaintiffs contend that the cases cited by Defendants for the
proposition that an alien does not have standing to challenge the
denial of an I-140 are distinguishable from the facts of this case.
The Fifth Circuit has provided little advice on this precise
issue,18 recently finding that the question of the alien’s standing
was moot because the prospective employer’s claims concerning the
I-140 were the same as those of the alien and had been dismissed.
See Gene’s Mach., Inc. v. U.S. Dep’t of Homeland Sec., No. 1240368, 2012 WL 6554853, at *1 (5th Cir. Dec. 17, 2012)(unpublished).
Ten years earlier, the Fifth Circuit declined to exercise mandamus
jurisdiction over an alien’s lawsuit challenging the agency’s
denial
of
his
motion
to
reconsider
a
prospective
application for a change of his nonimmigrant status.
employer’s
See Kale v.
U.S. Immigration & Naturalization Svc., 37 Fed. App’x 90, No. 01discretionary).
18
District courts across the nation have addressed the issue, reaching
opposing conclusions. See, e.g., Shalom Pentecostal Church v. Napolitano, Civ.
No. 11-4491, 2013 WL 162986, at **3-4 (D.N.J. Jan. 15, 2013)(unpublished)
(disagreeing with courts citing regulations as the basis for denying standing and
finding that the alien had standing to challenge a church’s petition on his
behalf for a special immigrant religious worker visa); George v. Napolitano, 693
F. Supp.2d 125, 130 (D.D.C. 2010)(finding that the prospective employer was the
proper party in an action seeking review of the denial of an I-140 Petition and
that the alien lacked standing).
10
10921,
2002
WL
1022012,
2002)(unpublished).
right
to
relief
at
(5th
*1-2
Cir.
May
10,
The court determined that he had “no clear
because
he
lack[ed]
standing
to
move
for
reconsideration” under the applicable regulations. Id. at *2. The
court did not specifically comment on constitutional standing. See
id.
Here,
as
in
Gene’s
Machine,
Inc.,
the
claims
prospective employer and the alien are identical.
of
the
Plaintiff KBA
can protect the interests of Plaintiff Khamisani without his
presence in the lawsuit.
Because the court is dismissing all of
the other claims raised by Plaintiff Khamisani, he is no longer
necessary for the complete adjudication of the case.
Therefore,
the court can dismiss Plaintiff Khamisani without reaching the
issue of constitutional standing.
See U.S. v. Lipscomb, 299 F.3d
303, 359 (5th Cir. 2002)(quoting Ashwander v. TVA, 297 U.S. 288, 347
(1936))(“It is not the habit of the court to decide questions of a
constitutional nature unless absolutely necessary to a decision of
the case.”).
Plaintiff Khamisani should be dismissed from this case because
his interests with regard to the claims remaining before the court
are protected by his prospective employer, Plaintiff KBA.
C.
Proper Parties
Plaintiffs concede in their response that Ridge and Heinauer
are
not
proper
parties
to
this
11
lawsuit
but
fail
to
address
Defendants’ arguments regarding Holder.
Holder, as U.S. Attorney General, heads the Department of
Justice (“DOJ”), and the Executive Office for Immigration Review
(“EOIR”) is an agency within the DOJ that is responsible for
adjudicating immigration cases.19
The Board of Immigration Appeals
(“BIA”) is a division of the EOIR that is responsible for hearing
appeals of decisions made by immigration judges and DHS district
directors.20
Janet Napolitano is the Secretary of the DHS, and the USCIS is
an agency within the DHS that is responsible for overseeing lawful
immigration.21
responsible
for
The AAO is an office within the USCIS that is
hearing
appeals
of
decisions
made
by
USCIS
adjudications officers.22
In this case, Plaintiff KBA appealed the denial of its I-140,
and the AAO issued a final decision.
According to Plaintiffs’
complaint, neither the EOIR nor the BIA were involved in the
19
The organizational chart for the
http://www.justice.gov/agencies/index-org.html.
DOJ
is
available
online
at
20
The
organization
of
the
EOIR
is
detailed
online
at
http://www.justice.gov/eoir/orginfo.htm. A description of the BIA is available
online at http://www.justice.gov/eoir/biainfo.htm.
21
The organizational chart for the DHS
http://www.dhs.gov/xlibrary/assets/dhs-orgchart.pdf.
is
available
online
at
22
The organizational chart for the USCIS is available online at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d
1a/?vgnextoid=476fcf021c599110VgnVCM1000004718190aRCRD&vgnextchannel=2af29c775
5cb9010VgnVCM10000045f3d6a1RCRD. A description of the AAO is available online
at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543
f6d1a/?vgnextoid=dfe316685e1e6210VgnVCM100000082ca60aRCRD&vgnextchannel=dfe316
685e1e6210VgnVCM100000082ca60aRCRD.
12
adjudication of their petitions.23
Therefore, the DOJ played no
role in making the challenged decisions.
Holder has no connection
to these decisions and should be dismissed.
D.
Similar Cases
Plaintiffs explain that they are not contending that the USCIS
is required to approve the I-140 merely because it approved the
petitions of others who were similarly situated.
Plaintiffs
represent that their focus is on the agency’s failure to follow
established rules and procedures in this case, which resulted in an
arbitrary and capricious decision.
The court agrees with Defendants that a favorable decision in
a separate case cannot serve as the sole basis for finding the
decision in this case to have been incorrect.
A previous contrary
decision under similar facts, on its own, does not mean that the
present decision is arbitrary or capricious.
See Boi Na Braza
Atlanta, LLC v. Upchurch, No. 3:04-CV-2007-L, 2005 WL 2372846, at
*8 (N.D. Tex. Sept. 27, 2005) aff’d, 194 Fed. App’x 248 (5th Cir.
2006)(citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 863 (1984))(noting that “simply because the
agency previously interpreted a statute differently” does not make
an
agency’s
decision
arbitrary,
capricious
or
an
abuse
of
discretion).
23
Although the statutes indicate that petitions of the sort at issue
in this case are to be filed with the U.S. Attorney General, all decisions in
this case were made by the USCIS, according to Plaintiff’s complaint.
13
On the other hand, approvals in cases with similar facts may
have relevance in ascertaining whether the agency is following its
own rules and procedures in rendering decisions.
In other words,
that information may be a factor in determining whether the
decision in this case is arbitrary and capricious, just not the
only factor.
Defendants cite to no persuasive case law to the
contrary or to any legal authority that prevents consideration of
similar agency decisions.
The court finds that no aspect of Plaintiff KBA’s claims
regarding the denial of the I-140 should be dismissed.
The court
shall address the merits of those claims in a separate opinion on
summary judgment.
IV.
Conclusion
Based on the foregoing, the court GRANTS IN PART AND DENIES IN
PART Defendants’ motion.
SIGNED in Houston, Texas, this 14th
14
day of March, 2013.
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