Mutasa v. U.S. Citizenship & Immigration Servs.

• Decision Date: 31 March 2021
• Docket Number: Civ. No. 20-09321 (KM) (ESK)
• Citation: 531 F.Supp.3d 888
• Parties: Alice MUTASA, Plaintiff, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, and Kenneth Cuccinelli, Acting Director, Defendants.
• Court: U.S. District Court — District of New Jersey

531 F.Supp.3d 888

Alice MUTASA, Plaintiff,

v.U.S. CITIZENSHIP AND IMMIGRATION SERVICES, and Kenneth Cuccinelli, Acting Director, Defendants.

Civ. No. 20-09321 (KM) (ESK)

United States District Court, D. New Jersey.

Signed March 31, 2021

Chelsea Dawn Germak, Gwendolyn M. Robosson, Fragemen, Del Rey, Bernsen & Loewy, LLP, Matawan, NJ, for Plaintiff.

Enes Hajdarpasic, United States Attorney's Office, Newark, NJ, for Defendants.

KEVIN MCNULTY, U.S.D.J.:

Alice Mutasa and her employer filed an employment visa petition with the United States Citizenship and Immigration Services ("the Service"). The Service rejected her petition because a page was missing, she and her employer corrected the error, and then the Service denied her petition because a required certificate had, by then, expired.

Mutasa sued the Service, alleging that its actions were unlawful, arbitrary, capricious, and an abuse of discretion. The Service moves to dismiss for failure to state a claim. (DE 16.)¹ The Service is within its rights, and I understand the need for regularized procedures when dealing with many thousands of applications. Mutasa's plight, however, is sympathetic, and the result may be months of delay and a reapplication, leading to the same result. One dreams of a system with time and resources enough to simply deal with each applicant face-to-face, without respect to matters of form. For good and practical reasons, that is not the system we have. The Service's motion is GRANTED .

I. BACKGROUND

A. Regulatory Background

An overview of the applicable regulatory scheme is helpful. The Immigration and Nationality Act ("INA") creates different employment-based immigration visas. Shalom Pentecostal Church v. Acting Sec'y U.S. Dep't of Homeland Sec. , 783 F.3d 156, 159 (3d Cir. 2015) (citing 8 U.S.C. § 1153(b)(1)–(5) ). One is for "[s]killed workers" and "professionals," the so-called "EB-3" visa. § 1153(b)(3). The EB-3 application process involves two agencies (the Service and the Department of Labor ("DOL")) and three steps.

First, an alien's American employer obtains a labor certification from DOL attesting that there are no qualified workers in the United States available to take the job. See § 1182(a)(5)(A)(i). That certification is valid for 180 days. 20 C.F.R. § 656.30(b)(1).

Second, the employer files a "Form I-140" petition with the Service along with the labor certification. 8 C.F.R. § 204.5(l )(1), (3)(i). If the visa eligibility requirements are met, the Service "will approve" the visa. Id. § 103.2(b)(8)(i). If not all the required evidence is submitted to make the eligibility determination, the Service "in its discretion may deny the benefit request for lack of initial evidence or for ineligibility or request that the missing initial evidence be submitted." Id. § 103.2(b)(8)(ii).

Third, the employee files a "Form I-485" application for adjustment of status to legal permanent resident. Id. § 245.2(a)(3)(ii). Depending on the circumstances, the I-485 application is filed either concurrently with the I-140 petition or following approval of an I-140 petition. Id. § 245.2(a)(2). Subject to certain additional requirements not relevant here, the Service may approve the application and adjust the alien-employee's status to permanent resident. See id. § 245.2(a)(5)(ii).

B. Mutasa's Application Process

Mutasa is a Zimbabwe citizen with advanced business degrees. (Compl. ¶¶ 25–26.) She has worked for her U.S.-based employer since 2013 under a different visa program. (Id. ¶ 27.) Her employer (which the Complaint does not name) decided to transition her to a permanent role, so it began the EB-3 process. (Id. ¶¶ 27–29.)

The employer first obtained a labor certification from DOL on June 4, 2019. (Id. ¶ 36.) 171 days later, the employer submitted an I-140 petition along with the labor certification to the Service. (Id. ¶ 37.) The employer included an I-495 application from Mutasa with the I-140 petition. (Id. ¶ 41.)

There was, however, a paperwork mix-up. Inadvertently, page two of the I-485 application was inserted as page two of the I-140 petition. (Id. ¶ 43.) The two pages contain nearly the same information—except that page two of the I-140 petition contains a field for the alien's birthdate, while page two of the I-485 application does not. (Id. ¶ 44.) As a result, the I-140 petition did not contain Mutasa's birthdate. Nonetheless, supporting documents filed with the petition listed her birthdate at least five times. (Id. ¶ 45.)

The Service rejected the I-140 petition because it was missing page two and thereby Mutasa's birthdate. (Id. ¶ 42.) In a "Rejection Notice," the Service explained as follows:

Your 1-140, fees, and any supporting documentation is being returned to you for the following reason(s):

The application/petition you sent us is missing some pages....

The application/petition has not been fully completed. One or more of the following field(s) were not completed:

- Part 3 Date of Birth

(Rejection at 1.)²

Mutasa and her employer quickly rectified the error and resubmitted the I-140 petition and I-485 application. (Compl. ¶ 51.) This time, however, the Service denied (as opposed to rejected) the resubmitted I-140 petition because, at that point, the 180-day labor certification validity period had expired. (Id. ¶ 52.) The Service explained that "[t]he [labor certification] submitted in support of your petition was certified on November 5, 2018, and remained valid until December 1, 2019. Since your petition was filed on January 31, 2020, the labor certification was no longer valid at the time your petition was filed." (Denial at 1.) Because an I-140 petition requires a valid labor certification, the Service denied Mutasa's petition. (Id. )

As a result, Mutasa's visa status is in jeopardy. (Compl. ¶ 58.) The EB-3 process is time-consuming and costly. (See id. ¶ 36 (seventh-month process to obtain labor certification); 20 C.F.R. § 656.17 (describing actions an employer must take to obtain a labor certification).) Her current visa is nonpermanent, so there is a risk that she will lose lawful status in the interim if she and her employer have to repeat the EB-3 process. (See Compl. ¶ 58.)

C. Procedural History

Mutasa sued the Service and its then-acting director in his official capacity. (Compl. ¶ 15–16.)³ She asserted four claims: (1) violation of the INA; (2) violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 702 ; (3) a claim under the Mandamus Act ("MA"), 28 U.S.C. § 1361, to compel the Service to accept her petition and grant a visa; and (4) a claim under the Declaratory Judgment Act ("DJA"), 28 U.S.C. § 2201(a), for a declaratory judgment that the Service violated the INA and APA. (Id. ¶¶ 63–79.) The Service moves to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Mot.)

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 8(a) does not require that a pleading contain detailed factual allegations but "more than labels and conclusions." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The allegations must raise a claimant's right to relief above a speculative level, so that a claim is "plausible on its face." Id. at 570, 127 S.Ct. 1955. That standard is met when "factual content [ ] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Rule 12(b)(6) provides for the dismissal of a complaint if it fails to state a claim. The defendant bears the burden to show that no claim has been stated. Davis v. Wells Fargo , 824 F.3d 333, 349 (3d Cir. 2016). I accept facts in the complaint as true and draw reasonable inferences in the plaintiff's favor. Morrow v. Balaski , 719 F.3d 160, 165 (3d Cir. 2013) (en banc).

APA cases differ somewhat. "When a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal. The entire case on review is a question of law." Neto v. Thompson , 506 F. Supp. 3d 239, 244, Civ. No. 20-00618, (D.N.J. Dec. 10, 2020) (quoting Am. Biosci., Inc. v. Thompson , 269 F.3d 1077, 1083 (D.C. Cir. 2001) ).

III. DISCUSSION

This is an APA case.⁴ "The APA sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts." Dep't of Homeland Sec. v. Regents of the Univ. of Cal. , ––– U.S. ––––, 140 S. Ct. 1891, 1905, 207 L.Ed.2d 353 (2020) (quotation marks and citation omitted). The APA empowers courts to review agency actions for whether they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

The Complaint alleges various ways in which the Service's rejection and then denial of Mutasa's petition was contrary to the INA's implementing regulations, arbitrary and capricious, and an abuse of discretion. The Service's Motion responds by explaining how the rejection and denial comported with the law and were otherwise reasonable. I take up the Service's arguments first as they relate to its initial rejection of the petition due to the missing page and birthdate, and then to its subsequent denial due to the expired labor certification.⁵

A. Initial Rejection

Mutasa alleges that there was no support in the regulations for the Service's rejection, so it was contrary to law. Even if it was not contrary to law, she argues, the rejection was arbitrary and capricious or an abuse of discretion. I disagree; the Service's rejection was rigid and bureaucratic, but it was supported by the regulations and otherwise reasonable.

1. Contrary to Law

The Service argues that it has authority to reject petitions with incomplete forms. (Mot. at 5–7.) The Service points to three regulations. One provides that "[e]ach benefit request must be properly completed and filed with all initial evidence required." 8 C.F.R. § 103.2(b)(1) (emphasis added). Another provides that "[a] benefit request will be rejected if it is...