United States District Court, M.D. Florida, Ocala Division
REPORT & RECOMMENDATION
R. LAMMENS, UNITED STATES MAGISTRATE JUDGE
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.
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).
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.
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. (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).
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).
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).
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.
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. 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
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).
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 ...