Atiffi v. Kerry
| Decision Date | 04 November 2013 |
| Docket Number | No. CIV. S-12-3001 LKK/DAD,CIV. S-12-3001 LKK/DAD |
| Parties | MOHAMMED MUSA ATIFFI, Plaintiff, v. JOHN F. KERRY, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
Plaintiff Mohammed Musa Atiffi is a U.S. citizen. Complaint (ECF No. 2) ¶ 1. On May 28, 2010, plaintiff married Massoudah Atiffi, a native and citizen of Afghanistan. Id. The Attifis then commenced a two-pronged effort to obtain a U.S. immigrant visa for Ms. Atiffi.
On August 5, 2010, plaintiff filed a Form I-130 ("Petition for Alien Relative"), with the United States Citizenship and Immigration Services ("USCIS"), of the Department of HomelandSecurity, on behalf of his wife. Complaint ¶ 1.2 This form requested that Ms. Atiffi be classified as an "immediate relative." Id. This classification is important because aliens so classified are not subject to the world-wide numerical limitations on immigration.3
USCIS determined that Ms. Atiffi was, in fact, an "immediate relative" and therefore approved plaintiff's I-130 petition. Complaint ¶ 18; Declaration of Lynn Nguyen Ho ("Ho Decl.") (ECF No. 11-2) ¶ 6. USCIS then forwarded the approved I-130 petition to the U.S. Department of State for visa processing at the consular office in Kabul, Afghanistan. Complaint ¶ 18; Ho Decl. ¶ 6.4
To commence the second prong of this visa process, Ms. Atiffi applied to the consular office for a visa, and was interviewed by a consular officer. Complaint ¶ 19; Ho Decl. ¶ 6.5 Based upon the approved Form I-130 filed by Mr. Atiffi on behalf of Ms. Atiffi, and the visa application filed by Ms. Atiffi herself, the consular official involved was then authorized to decide (1) whether to grant Ms. Atiffi the "immediate relative" status previously approved by USCIS, see 22 C.F.R. § 42.41,6 and (2) whether to issue her the requested visa, see 8 U.S.C. § 1201(a)(1).
The consular officer was required to grant "immediaterelative" status to Ms. Atiffi if he was "satisfied" that she had "the relationship claimed in the petition." 22 C.F.R. § 42.21. The parties' papers do not disclose whether or not the consular officer ever granted "immediate relative status" to Ms. Atiffi.7 However, on November 8, 2012, the consular office sent a letter to Ms. Atiffi stating that it was "unable to issue a visa" to her, having made the determination that she was "found ineligible to receive a visa." Complaint ¶ 19 & Exh. A (ECF No. 2-1).
The USCIS letter gave Ms. Atiffi no information about why her visa application was refused. Even though the USCIS letter states that the statutory grounds for the denial of Ms. Atiffi's application are "marked with 'X,'" in fact, no statutory grounds were so marked.8 Rather, the letter advised Ms. Atiffi onlythat:
Your petition has been returned to US Citizenship and Immigration Services (USCIS) through the National Visa Center (NVC) for reconsideration and disposition. Further inquiries should be directed to the USCIS office that processed your petition.
Complaint Exh. A.
In short, the USCIS letter did not offer any explanation for the denial. Nor did it advise Ms. Atiffi whether she could overcome the consular determination "by the presentation of additional evidence." See 22 C.F.R. § 42.81(b). Ms. Atiffi was simply told that she was denied, with no statement of which statutory or regulatory authority was the basis for the denial, no statement of any factual basis for the denial, nor any instructions or information on how to proceed if she wished to pursue administrative remedies.9
Plaintiff filed this lawsuit on December 12, 2012, alleging that defendants' conduct violated the Administrative Procedure Act in that their actions were done arbitrarily, capriciously and contrary to law, in that defendants denied Ms. Atiffi's application for an immigration visa "without even a facially legitimate reason." Complaint ¶ 23. Plaintiff asserts that hewas deprived of his liberty interest in the integrity of his family by the constitutionally inadequate procedures employed by defendants in handling his petition and in denying the requested visa to Ms. Atiffi. Complaint ¶ 3. Defendants - invoking "the doctrine of consular non-reviewability," mootness and failure to exhaust administrative remedies - move to dismiss the lawsuit in its entirety for lack of federal jurisdiction. Failing that, defendants move to dismiss for failure to state a claim.
Rule 12(b)(1): Lack of Federal Jurisdiction.
The party seeking to invoke the jurisdiction of the federal court has the burden of establishing that jurisdiction exists. KVOS, Inc. v. Associated Press, 299 U.S. 269, 278 (1936); Assoc. of Medical Colleges v. United States, 217 F.3d 770, 778-779 (9th Cir. 2000). On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), the standards that must be applied vary according to the nature of the jurisdictional challenge.
When a party brings a facial attack to subject matter jurisdiction, that party contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) , cert. denied, 544 U.S. 1018 (2005). In a Rule 12(b)(1) motion of this type, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made. See Sea Vessel Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994), Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). The factual allegations of the complaint are presumed to be true, andthe motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1039 n.1 (9th Cir. 2003), cert. denied, 541 U.S. 1009 (2004); Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir.), cert. denied, 534 U.S. 1018 (2001). Nonetheless, district courts "may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment" when resolving a facial attack. Safe Air, 373 F.3d at 1039.
Alternatively, when a party brings a factual attack, it "disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id. Specifically, a party converts a motion to dismiss into a factual motion where it "present[s] affidavits or other evidence properly brought before the court" in support of its motion to dismiss. Id. Unlike in a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court need not assume the facts alleged in a complaint are true when resolving a factual attack. Id. (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). While the motion is not converted into a motion for summary judgment, "the party opposing the motion must [nonetheless] furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Id. When deciding a factual challenge to subject matter jurisdiction, district courts may only rely on facts that are not intertwined with the merits of the action. Id.
B. Rule 12(b)(6): Failure To State a Claim.
A dismissal motion under Fed. R. Civ. P. 12(b)(6) challenges a complaint's compliance with the federal pleading requirements.Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The complaint must give the defendant "'fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
To meet this requirement, the complaint must be supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, this court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007).10
"While legal conclusions can provide the framework of a complaint," neither legal conclusions nor conclusory statements are themselves sufficient, and such statements are not entitled to a presumption of truth. Iqbal, 556 U.S. at 679. Iqbal and Twombly therefore prescribe a two-step process for evaluation of motions to dismiss. The court first identifies the non-conclusory factual allegations, and then determines whether these allegations, taken as true and construed in the light most favorable to the plaintiff, "plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679.
"Plausibility," as it is used in Twombly and Iqbal, does not refer to the likelihood that a pleader will succeed in provingthe allegations. Instead, it refers to whether the non-conclusory factual allegations, when assumed to be true, "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 557).11 A complaint may fail to show a right to relief either by lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
The government argues that plaintiff's claim is moot. Because an assertion of mootness is an attack on this court's "power to hear a case," this argument will be considered to bepart of defendant's motion to dismiss for lack of jurisdiction pursuant to Rule 12(b)(1). See Morrison v. Nat'l Australia Bank Ltd., 561 U.S. _, 130 S. Ct. 2869, 2877 (2010) () (internal quotation marks omitted); White v. Lee, 227 at 1242 (...
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