Lee-Lewis v. Kerry
| Decision Date | 08 November 2016 |
| Docket Number | 2:13-CV-80 |
| Parties | COLETTE LEE-LEWIS, M.D., et al., Plaintiffs, v. JOHN KERRY, United States Secretary of State, et al., Defendants. |
| Court | U.S. District Court — Southern District of Georgia |
Plaintiffs Collette Lee-Lewis, M.D., and her husband, Selvin Charles Lewis, bring suit against multiple United States government officials and agencies relating to her J-1 visa waiver application. Plaintiffs seek declaratory judgments regarding Defendants' alleged violations of: (1) the Administrative Procedure Act ("APA"); (2) the Freedom of Information Act ("FOIA"); (3) due process; (4) the International Covenant on Civil and Political Rights ("ICCPR"); and (5) customary international law. Dkt. No. 28 ("2d Am. Compl.") ¶¶ 117-177. Plaintiffs also seek redress under FOIA. Id. ¶¶ 178-183, p. 39 ¶¶ 26-27.
Defendants John Kerry, Rajiv Shah, Linda Walker, Marcia Pryce, Daniel Renaud, United States, Eric Holder, Jeh Johnson, and Leon Rodriguez ("Defendants") argue that this Court lacks subject matter jurisdiction because: (1) the claims are moot; (2) the challenged actions are exempt from judicial review; (3) Plaintiff failed to state a claim; and (4) the FOIA request was not properly perfected. Dkt. No. 32 ("Def. Mot.") at 5-28.
Presently before the Court are Defendants' Motion to Dismiss (Dkt. No. 32) and Plaintiffs' Motion to Strike (Dkt. No. 40). Although the Court empathizes with Plaintiffs, it cannot grant most of the relief they seek. However, it does appear to have subject matter jurisdiction over Plaintiffs' FOIA claims.
Thus, for the reasons below, Defendants' Motion to Dismiss (Dkt. No. 32) is GRANTED IN PART and Plaintiffs' Motion to Strike (Dkt. No. 40) is DENIED IN PART.
The Court begins by briefly summarizing the relevant provisions of the J-1 visa and its accompanying waiver process, along with the circumstances surrounding the Caribbean island of Montserrat, a British Overseas Territory.
The United States awards visas each year to "an alien having a residence in a foreign country which he has no intention of abandoning who is a bona fide student, scholar,trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill." 8 U.S.C. § 1101(a)(15)(J) ("J-1 visa"). The J-1 visa grants its holders temporary status in the United States "for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills or receiving training." Id.
No J-1 holder "shall be eligible to apply for an immigrant visa, or for permanent residence, or for a non-immigrant visa" without residing and being physically present in her home country for at least two years after leaving the United States. 8 U.S.C. § 1182(e). Plaintiff Lee-Lewis is subject to this requirement because the United States Agency for International Development ("USAID") sponsored her visa. 2d Am. Compl. ¶ 23.
The residency requirement "may" be waived in three cases: (1) "exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien)"; (2) "the alien cannot return to the [required] country . . . because [s]he would be subject to persecution on account of race, religion or political opinion"; and (3) "the foreign country of the alien's nationality or last residence has furnished . . . a statement in writing that it has no objection to such waiver in the case of such alien." Id.
Plaintiff Lee-Lewis seeks the third type of waiver, having received a no objection statement from the Montserratian government. Id. ¶ 47. This is only one component of a no objection waiver application: The State Department can "request the views of each of the exchange visitor's sponsors," and its Waiver Review Division ("WRD") "shall review the program, policy, and foreign relations aspects of the case." 22 C.F.R. § 41.63(d)(1)-(2). WRD's recommendation is ordinarily adopted as the State Department's. Id. § 41.63(d)(2).
In 1995, the Soufriere Hills volcano of southern Montserrat erupted, completely destroying the island's capital, its airport, and most of its fertile soil, and covering much of the island in volcanic ash. Id. ¶ 15. The volcano may destroy Montserrat-it has continued to erupt and could annihilate the island completely at any time. Id. ¶ 54. The State Department and the United States Citizenship and Immigration Service ("USCIS") recognize that "returning residents possibly would be subject to contracting the lung disease silicosis and other health risks caused by ash that periodically covers much of the island." Id. ¶ 15.
Plaintiff Lee-Lewis is a medical doctor who now lives with her husband in Glynn County, Georgia; she was born in Plymouth,Montserrat's longtime capital. Id. ¶¶ 1, 15. Both spouses are Montserrat citizens. Id. ¶ 2. On August 12, 1989, Plaintiff Lee-Lewis entered the United States on a J-1 visa sponsored by USAID, to pursue a biochemistry bachelor's degree. Id. ¶ 22. She remained in this country until October 26, 1992. Id. ¶ 24. She returned to Montserrat. Id. ¶ 25. She diligently searched for work, but found none. Id. She returned to the United States in December 1992 for medical school interviews. Id.
Before she did so, Montserrat's Ministry of Education informed her "that she was released from her two-year foreign residence requirement because she could not find a job." Id. It provided Plaintiff Lee-Lewis with a letter explaining "that she had applied for a job, but there were none available." Id. This caused Plaintiff Lee-Lewis to "sincerely believe" that she was released from the J-1 visa residency requirement. Id.
She returned to the United States on a B-1/B-2 tourist visa, then changed to an F-1 student visa upon matriculating to medical school. Id. ¶ 26. After graduating, she maintained H-1B status from May 8, 1998 to July 7, 2005. Id. ¶ 27.
Believing that she was free of J-1 issues, and advised by an attorney, Plaintiff Lee-Lewis applied for and received an I-140 National Interest Waiver in May 2005. Id. ¶¶ 34-35.
Shortly thereafter, the attorney asked Plaintiff Lee-Lewis whether she had ever obtained a J-1 residency requirementwaiver, to which Plaintiff responded "that she did not have one, nor did she think she needed one." Id. ¶ 35. The attorney then "sent her a letter on June 2, 2005 . . . notifying her that she was ineligible to apply for adjustment of status until she fulfilled her two-year foreign residence requirement." Id.
Plaintiff Lee-Lewis submitted her no objection waiver application on October 27, 2006. Id. ¶ 53. It referenced the ongoing volcanic eruptions on Montserrat. Id. ¶ 54.
The State Department issued a "Not Favorable Recommendation," and the USCIS denied the application on October 2, 2008. Id. ¶¶ 80, 92. The denial read:
The United States Department of State has advised that even though a "no objection" statement from your country of nationality has been issued, based on program and policy considerations they are not recommending that you be granted a waiver of the two-year foreign residence requirement of section 212(e) of the Immigration and Nationality Act, as amended. . . . Accordingly, on the basis of the unfavorable recommendation of the USDOS, you are hereby denied a waiver of the two-year foreign residence requirement of section 212(e). No appeal lies from this decision . . . .
After this lawsuit began, the State Department reopened the case and issued a "Favorable Recommendation," which was followedby an USCIS approval notice granting Plaintiff Lee-Lewis a waiver on August 7, 2013. Id. at ¶¶ 99-100.
On May 8, 2013, Plaintiff Lee-Lewis filed a State Department FOIA request seeking information about the denial of her application. Id. ¶ 38. Plaintiff Lee-Lewis sought information as to whether the WRD "engaged in a pattern and practice of not adhering to its own regulations, the Constitution, and [whether it] commit[ed] other legal violations in adjudicating no objection waiver applications that involve U.S. Government funding." Id. ¶ 82.
On May 22, 2013, the State Department acknowledged receipt of the request and issued a case number. Id. ¶ 112. To date, the State Department has failed to confirm or deny the existence of responsive documents. Id. ¶¶ 113-115.
On June 17, 2013, Plaintiffs filed suit against Defendants, seeking declaratory, injunctive, mandamus, and FOIA relief. Dkt. No. 1. Plaintiffs filed a Second Amended Complaint on August 20, 2014. Dkt. No. 28.
Defendants filed a Motion to Dismiss (Dkt. No. 32), Plaintiffs responded (Dkt. No. 36), Defendants replied (Dkt. No. 37), and Plaintiffs filed a surreply (Dkt. No. 42). Plaintiffsmoved to strike Defendants' reply (Dkt. No. 40); Defendants responded (Dkt. No. 41).
Now pending before the Court are Defendants' Motion to Dismiss (Dkt. No. 32), which is GRANTED IN PART, and Plaintiffs' Motion to Strike (Dkt. No. 40), which is DENIED IN PART.
Defendants move to dismiss this action for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). A 12(b)(1) motion can challenge subject matter jurisdiction facially or factually. McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). In a facial challenge, the court only considers the pleadings, so "the plaintiff is left with safeguards similar to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised." Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981). The complaint's allegations are taken as true, and the court determines whether the complaint sufficiently alleges a basis for jurisdiction. Scarfo v. Ginsburg, 175 F.3d 957, 960 (11th Cir. 1999) (citing ...
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