United States District Court, S.D. Florida
ORDER GRANTING MOTION TO DISMISS
L. ROSENBERG UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on Defendants' Motion to
Dismiss [DE 34]. The Motion has been fully briefed by both
sides. The Court has reviewed the documents in the case file
and is fully advised in the premises. For the reasons set
forth below, Defendants' Motion to Dismiss is granted.
Douglas Bourdon is a United States citizen. On June 18, 2008,
Bourdon submitted a petition (the “I-130
petition”) to the United States Citizenship and
Immigration Services (“USCIS”), requesting that
USCIS recognize his wife, Ms. Thi Thuan Tran, a citizen of
Vietnam, as the immediate relative of a United States Citizen
so that Ms. Tran could apply for an immigrant visa. Compl.
¶¶ 21-22, 31-32. On January 15, 2009, Plaintiff and
Ms. Tran appeared for an interview on the petition.
Id. ¶ 32. At the interview, Plaintiff was
informed that he was ineligible to submit an I-130 pursuant
to the Adam Walsh Child Safety and Protection Act of 2006,
Pub. L. No. 109-248 (the “AWA”), because he had
been convicted of a “specified offense against a
minor” and had not established that he posed “no
risk” to Ms. Tran as required by the AWA. Id.
Specifically, in 2003, Plaintiff was convicted of possession
of a visual depiction of a minor engaged in sexually explicit
conduct in violation of 18 U.S.C. § 2252(a)(4)(B).
Compl. at Ex. A at 2.
USCIS issued Plaintiff a Request for Evidence
(“RFE”) regarding Plaintiff's offense and
rehabilitation. Id. ¶ 33. Plaintiff responded,
providing documentation including an affidavit from his wife
and reports from a social worker and forensic examiner.
Id. ¶ 34. The USCIS denied Plaintiff's
petition again, based on his prior conviction and a
determination that he had not demonstrated “beyond a
reasonable doubt” that he posed no risk to Ms. Tran.
Id. ¶ 35.
appealed that denial to the Board of Immigration Appeals
(“BIA”) and, on February 15, 2012, the BIA
remanded Bourdon's petition to USCIS for further
development of the record and additional briefing.
Id. ¶ 36. USCIS subsequently issued another
RFE, in response to which Bourdon submitted additional
documentation, including additional forensic reports,
affidavits from Bourdon, Ms. Tran, and Ms. Tran's family,
medical records, and employment records. Id.
¶¶ 38-39. On November 21, 2014, after considering
the newly submitted evidence, USCIS once again denied
Bourdon's petition. USCIS concluded “in its
exercise of sole and unreviewable discretion” that
Plaintiff “failed to demonstrate that [he] pose[s] no
risk to the beneficiary.” Compl., Ex. A.
December 23, 2015, Plaintiff commenced this action,
attempting to allege six causes of action: (1) Count I:
Impermissible Retroactive Application of the AWA, alleging
that USCIS applied the Adam Walsh Act in an impermissibly
retroactive manner because Bourdon's convictions preceded
the statute; (2) Count II: Violation of Fifth Amendment Due
Process and Equal Protection Guarantees, alleging violations
of Bourdon's fundamental right to marry; (3) Count III:
Violation of Congress's Enumerated Powers, alleging that
the AWA is an unauthorized interference with governmental
recognition of Plaintiff's marriage; (IV) Violation of
the Administrative Procedures Act (“APA”),
alleging that USCIS adoption of a “beyond a reasonable
doubt” standard required notice and comment; (5) Count
VI: Violation of Procedural Due Process, alleging that USCIS
improperly interfered with Bourdon's purported
constitutional liberty interest in living with his wife in
the United States; and (6) Count VI: Violation of the APA,
based on USCIS's weighing and consideration of certain
evidence and its requiring petitioners to establish “no
risk” to the beneficiary, including adult
beneficiaries, by a “beyond any reasonable doubt”
STANDARD OF REVIEW
Subject Matter Jurisdiction
courts are courts of limited jurisdiction. They possess only
that power authorized by Constitution and statute, which is
not to be expanded by judicial decree.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(internal citations omitted). A federal court is powerless to
act beyond its statutory grant of subject matter
jurisdiction. See Smith v. GTE Corp., 236 F.3d 1292,
1299 (11th Cir. 2001).
to dismiss for lack of subject matter jurisdiction pursuant
to Fed.R.Civ.P. 12(b)(1) may attack jurisdiction facially or
factually. Morrison v. Amway Corp., 323 F.3d 920,
924 n.5 (11th Cir. 2003). When the jurisdictional attack is
factual, the Court may look outside the four corners of the
complaint to determine if jurisdiction exists. Eaton v.
Dorchester Dev., Inc., 692 F.2d 727, 732 (11th Cir.
1982). In a factual attack, the presumption of truthfulness
afforded to a plaintiff under Fed.R.Civ.P. 12(b)(6) does not
attach. Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th
Cir. 1999) (citing Lawrence v. Dunbar, 919 F.2d
1525, 1529 (11th Cir. 1990)). Because the very power of the
Court to hear the case is at issue in a Rule 12(b)(1) motion,
the Court is free to weigh evidence outside the complaint.
Eaton, 692 F.2d at 732.
Failure to State a Claim
motion to dismiss for failure to state a claim, this Court
accepts as true all the allegations in the complaint and
construes them in the light most favorable to the plaintiff.
Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262
(11th Cir. 2004). To survive a motion to dismiss for failure
to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), 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 Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although
this pleading standard “does not require
‘detailed factual allegations, ' . . . it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Id. (alteration added) (quoting
Twombly, 550 U.S. at 555). Pleadings must contain
“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 (citation
Relevant Statutory and Regulatory Background.
Immigration and Nationality Act (“INA”), as
amended, allows a U.S. citizen to file a petition seeking to
classify his or her foreign national spouse as an immediate
relative for the purpose of allowing his or her spouse to
immigrate to the United States. See 8 U.S.C. §
1154(a)(1)(A)(i). Congress delegated the authority to
adjudicate immigrant visa petitions classifying aliens as
immediate relatives to USCIS. See Homeland Security
Act of 2002, Pub. L. No. 107-296, § 451(b)(1) (Nov. 25,
2002) (codified at 6 U.S.C. § 271(b)(1)). Congress also
delegated authority to establish policies governing the
adjudication of immigrant visa petitions to USCIS.
Id. § 451(a)(3)(A). A U.S. citizen may seek
classification of his or her foreign national spouse as an
immediate relative by filing a Form I-130 petition ...