Museboyina v. Jaddou

Decision Date01 February 2023
Docket Number4:22CV3169
PartiesHARISH MUSEBOYINA, Plaintiff, v. UR JADDOU, Director, U.S. Citizenship and Immigration Services; and ANTONY BLINKEN, Secretary, United States Department of State, Defendants.
CourtU.S. District Court — District of Nebraska

MEMORANDUM AND ORDER ON SUBJECT MATTER JURISDICTION

Brian C. Buescher, United States District Judge

Plaintiff Harish Museboyina, a citizen and national of India residing in Portland, Oregon, brought suit against defendants Ur Jaddou, the Director of the U.S. Citizenship and Immigration Service (USCIS), and Anthony Blinken, the Secretary of the United States Department of State (DOS). Museboyina's claims arise from allegedly unreasonable delays in the adjudication of his employment-based “adjustment of status” application for permanent residency, Form I-485, and from Defendants' “Retrogression Policies” that determine the cut-off date to be eligible to apply for permanent residency.[1] For the reasons stated below, the Court finds that it lacks subject matter jurisdiction over Museboyina's claims and dismisses this action without prejudice but without leave to amend.

I. INTRODUCTION
A. Factual Background[2]

As relevant to this ruling, Museboyina alleges that he is a citizen and national of India currently in lawful H-1B non-immigrant status and that he has been living in the United States for fourteen years. Filing 14 at 2 (¶ 1), 13 (¶¶ 74-75). His employer filed an immigrant visa application for him with USCIS on September 27, 2013, which makes that date his “priority date” for his immigrant visa and all subsequent visas. Filing 14 at 13-14 (¶¶ 76-78); Filing 18-2 at 2 (Nunez Decl., ¶¶ 5-6). The importance of that “priority date” will be addressed below.

The Court notes that the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101-1537, governs how noncitizens obtain visas to enter and permanently reside in the United States. The INA has been amended at various times as Congress adjusted the worldwide limits on immigration. See, e.g., Immigration Act of 1990, Pub. L. 101-649. These limits include numerical limits worldwide, 8 U.S.C. § 1151; limits per-country for certain countries to which an applicant may be “chargeable” (typically the country of birth), 8 U.S.C. § 1152; and limits on various preference categories, including employment-based categories, 8 U.S.C. § 1153. Museboyina filed a Form I-485 for permanent residency on October 14, 2014, which USCIS accepted and assigned to the Nebraska Service Center. Filing 14 at 14 (¶¶ 84-85). Museboyina's employment-based category is currently EB-2, Filing 14 at 14 (¶ 79), and his chargeable country is India, Filing 14 at 1.

For an adjustment of status application to be approvable, a visa number must be available both at the time the applicant files the adjustment of status (I-485) application and at the time when USCIS adjudicates that application. See 8 U.S.C. §§ 1255(a) & (b) (requiring that the applicant be eligible “to receive an immigrant visa” and directing DOS to reduce by one the number of visas available upon approval of an adjustment application for the fiscal year then current); 8 C.F.R. §§ 245.1(g) & 245.2(a)(2)(i)(A)-(C); see also ECF 18-1 at 4-5 (Parker Decl.) (explaining the application of priority dates in relation to USCIS's ability to approve adjustment of status applications). DOS's Bureau of Consular Affairs publishes a monthly Visa Bulletin that sets forth visa availability for each preference category by chargeable country. See U.S. Dep't of State - Bureau of Consular Affairs, Visa Bulletin, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html. An application is “current”-meaning that a visa is available-for an applicant in a specific preference category and chargeable country if the applicant's “priority date” is earlier than the cut-off date in the Visa Bulletin. See “When to File Your Adjustment of Status Application for Family-Sponsored or Employment-Based Preference Visas: June 2022,” https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-priority-dates/when-to-file-your-adjustment-of-status-application-for-family-sponsored-or-employment-based-77. The Visa Bulletin includes charts showing the availability of visas by preference category for chargeable countries. For example, the Visa Bulletin for September 2022 shows a cut-off date of December 1, 2014, for EB-2 applicants chargeable to India. Filing 18-3 at 4. Thus, as of the beginning of September 2022, Museboyina's I-485 Application was current because the cut-off date for EB-2 applicants from India was after his “priority date” of September 27, 2013. Filing 14 at 15 (¶ 94); Filing 18-3 at 4. Museboyina's application is still pending. Filing 18-2 at 2 (¶ 6).

Unfortunately for Museboyina, on September 6, 2022, USCIS issued a memo directing that no further visa authorizations be made in response to EB-1 or EB-2 visa numbers for the remainder of Fiscal Year 2022. Filing 14-2 at 1. No further visas could be authorized because the maximum level of visa numbers that can be made available for use on a worldwide basis for applicants in EB-1 and EB-2 categories during FY 2022 had been reached. Filing 14-2 at 1. The October 2022 Visa Bulletin, which Museboyina asserts was issued the next day, indicates that the priority date for the EB-2 preference category for applicants chargeable to India “retrogressed” to April 1, 2012. Filing 18-4 at 4. Thus, as of the start of FY 2023 on October 1, 2022, Museboyina's application could not be approved because the cut-off date was before his priority date of September 27, 2013. See 8 U.S.C. §§ 1255(a) & (b); see also Filing 42-1 at 4 (November 22 Visa Bulletin again showing the pertinent cut-off date to be April 1, 2012); Filing 42-2 at 4 (December 2022 Visa Bulletin showing the pertinent cut-off date had retrogressed further to October 8, 2011).

B. Procedural Background

Museboyina filed both an original Complaint and a Motion for Preliminary Injunction when he initiated this lawsuit. Filing 1; Filing 3. Shortly after that, he filed an Amended Motion for Preliminary Injunction. Filing 7. Defendants filed a Motion to Dismiss challenging the Court's subject matter jurisdiction, but that Motion was rendered moot by the filing of Museboyina's First Amended Complaint. Filing 14. In his First Amended Complaint, Museboyina states that he seeks “two primary orders: (1) an order restraining, enjoining, and invalidating Defendants' Retrogression Policies and (2) an order compelling final agency action on Plaintiffs' adjustment of status applications.” Filing 14 at 1 (preamble). More specifically, Museboyina's first and second causes of action allege that USCIS and DOS, respectively, are unlawfully withholding agency action on his I-485 Application in violation of the Administrative Procedures Act (APA), 5 U.S.C. § 706(1), because Defendants' “Retrogression Policy” contravenes congressional intent. Filing 14 at 18; Filing 14 at 19. His third cause of action, which appears to be against USCIS only, alleges unreasonable delay in making a decision on his Form I-485 Application in violation of the APA, making USCIS's delay arbitrary and capricious, citing 5 U.S.C. §§ 555(b), 706. Filing 14 at 20- 31. Museboyina prays for various kinds of declaratory and injunctive relief as well as reasonable attorney's fees and costs.[3]

The same date Museboyina filed his First Amended Complaint, he also filed a Motion for Temporary Restraining Order. Filing 15. Museboyina sought a Temporary Restraining Order (TRO) to “restrain, enjoin, and invalidate Defendants' Retrogression Policies,” Filing 16 at 19, “to ensure [he] remain[s] eligible for adjustment of status [to permanent resident] when fiscal year 2023 immigrant visas become available,” Filing 16 at 1. However, after reviewing the parties' briefing the Court denied Museboyina's Motion for Temporary Restraining Order. Filing 18 at 14.

Museboyina then filed an interlocutory appeal of the Court's denial of his Motion for Temporary Restraining Order. Filing 23.

In the same Order in which the Court denied Museboyina's Motion for Temporary Restraining Order, the Court raised questions about its subject matter jurisdiction over Museboyina's First Amended Complaint and established a briefing schedule on that question. Filing 22 at 14. Shortly thereafter, Defendants challenged the Court's subject matter jurisdiction in a Motion to Dismiss Museboyina's Amended Complaint. Filing 29. Briefing on the Court's subject matter jurisdiction in response to both the Court's Order and Defendants' Motion is now complete. See Filing 31; Filing 32; Filing 35; Filing 36; Filing 41.

II.LEGAL ANALYSIS
A. Threshold Matters

This case requires the Court to consider some threshold matters before deciding whether it has subject matter jurisdiction over Museboyina's claims. These issues include whether the Court can even decide the question of subject matter jurisdiction while denial of Museboyina's Motion for Temporary Restraining Order is on interlocutory appeal; the standards for challenges to subject matter jurisdiction; whether the present challenge is “facial” of “factual”; and the dispositive subject matter jurisdiction principle in this case.

1. This Court Can Decide Its Subject Matter Jurisdiction Despite the Interlocutory Appeal

The first question the Court must address is whether it has jurisdiction to decide its subject matter jurisdiction over this action despite the pending interlocutory appeal. Generally, [t]he filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Chambers v. Pennycook, 641 F.3d 898, 903 (8th Cir. 2011...

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