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Isernia v. Nielsen

United States District Court, M.D. Florida, Ocala Division

June 14, 2019

VALERIYA ISERNIA, Plaintiff,
v.
KIRSTJEN M. NIELSEN, L. FRANCIS CISSNA, KATHERINE BARANOWSKI and KIMBERLY D DEAN Defendants.

          REPORT & RECOMMENDATION[1]

          PHILIP R. LAMMENS, UNITED STATES MAGISTRATE JUDGE

         Defendants in this action have filed a motion to dismiss Plaintiff's claim for review of agency action under the Administrative Procedure Act (APA). (Doc. 18). After Plaintiff responded to the motion, (Doc. 21), the Court ordered supplemental briefing on the issues. (Doc. 22, 23, 24). Upon referral from the district court, and after a review of the record, including the supplemental briefs, it is recommended that Defendants' motion to dismiss be granted and Plaintiff's complaint be dismissed for failure to state a claim on which relief may be granted.

         I. Background

         Plaintiff is a Russian national married to an American citizen. (Doc. 1 ¶¶12-13). In 2006, prior to marrying her husband, Plaintiff filed an application for asylum and withholding of removal proceedings with U.S. Citizenship and Immigration Services (USCIS). She later withdrew the asylum application after her marriage. (Doc. 1 ¶¶15-17). Plaintiff's spouse then filed a form I-130 to reclassify Plaintiff as an immediate relative at the same time that Plaintiff filed a form I-485 seeking an adjustment in her immigration status. (Doc. 1 ¶¶18-20).

         USCIS denied Plaintiff's form I-485 application under 8 U.S.C. § 1182(a)(6)(C)(i), finding that she had procured, or sought to procure, an immigration benefit by fraud-namely, that she had provided false information as part of her initial asylum application. (Doc. 1 ¶21). Plaintiff appealed that decision, and the case was reopened, but USCIS ultimately denied the application on the same grounds. (Doc. 1 ¶23-24). In December 2016, Plaintiff filed a second form I-485, which was again denied on the same grounds. (Doc. 1 ¶28). The decision specified that Plaintiff was inadmissible based on the fraud, and Plaintiff had not applied for a waiver of her inadmissibility. (Doc. 1 ¶29). The denial of the second form I-485 is the subject of this action.

         In her complaint, Plaintiff requests that the Court review the agency's decision and find the agency's action in denying her application without notifying her of the possibility of obtaining a hardship waiver, which could have allowed her application to be approved despite the fraud, to be arbitrary and capricious.[2] (Doc. 1). In her complaint, Plaintiff argues that Defendants are “under an affirmative obligation to provide Plaintiff with an opportunity to apply for a ‘waiver of inadmissability.'” Plaintiff seeks an order compelling Defendants to adjudicate her form I-485 along with her associated waiver of admissibility. (Doc. 1, p. 9).

         II. Legal Standard

         Defendants have moved to dismiss Plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). “A pleading that states a claim for relief 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). While detailed factual allegations are not required, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “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.'” Id. (quoting Twombly, 550 U.S. at 570). The court must view the allegations of the complaint in the light most favorable to the plaintiff, consider the allegations of the complaint as true, and accept all reasonable inferences therefrom. La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

         The Eleventh Circuit uses a two-pronged approach in its application of the holdings in Ashcroft and Twombly. The court must first, “eliminate any allegations in the complaint that are merely legal conclusions, ” and then, “where there are well-pleaded factual allegations, ‘assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 679). In applying these principles, the court can infer “‘obvious alternative explanation[s],' which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Id. (quoting Iqbal, 556 U.S. at 682).

         III. Discussion

         In their motion to dismiss, Defendants challenge both the Court's jurisdiction to hear Plaintiff's claim and argue that Plaintiff has failed to state a claim. The Court agrees that Plaintiff has failed to state a claim and, accordingly, submits that the motion to dismiss should be granted on that basis.

         To begin, Plaintiff maintains that jurisdiction is proper under section 10 of the Administrative Procedure Act (APA), codified at 5 U.S.C. § 704, and the general federal question statute, 28 U.S.C. § 1331.[3] While the APA does not confer jurisdiction, it does creates a cause of action under the general federal question statute for parties adversely affected by agency action. See Califano v. Sanders, 430 U.S. 99, 107 (1977). And Plaintiff here does submit that she was subject to adverse action by an agency. See Jama v. Dep't of Homeland Sec., 760 F.3d 490, 494- 95 (6th Cir. 2014) (holding district court had jurisdiction to consider claim of improper denial of fraud waiver application).[4]

         While the parties agree that discretionary decisions of the Attorney General are non-reviewable, see 8 U.S.C. § 1252(a)(2)(B), Plaintiff's claim raises the question whether the government had a non-discretionary legal obligation to provide her notice and opportunity to submit a hardship waiver prior to denying her application. See Mejia Rodriguez v. U.S. Dep't of Homeland Sec., 562 F.3d 1137, 1144-45 (11th Cir. 2009) (holding that jurisdiction exists in the district court to review non-discretionary decisions raising purely legal questions that do not arise in removal proceedings).

         Further, although judicial review is not available under the APA unless “an aggrieved party has exhausted all administrative remedies expressly prescribed by statute or agency rule, ” see Darby v. Cisneros, 509 U.S. 137, 146 (1993), and the Eleventh Circuit has held that the denial of a form I-485 application for adjustment of status is not final action where removal proceedings are pending because the applicant can renew the application before the immigration judge or file any other adjustment of status application, see ...


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