National Collegiate Recreation Servs. v. Chertoff, C.A. No. 9:05-3011-PMD.
| Citation | 447 F.Supp.2d 527 |
| Decision Date | 28 April 2006 |
| Docket Number | C.A. No. 9:05-3011-PMD. |
| Court | U.S. District Court — District of South Carolina |
| Parties | NATIONAL COLLEGIATE RECREATION SERVICES d/b/a American Hospitality Academy, Plaintiff, v. Michael CHERTOFF, Secretary, U.S. Department of Homeland Security, Eduardo Aguirre, Jr., Director, U.S. Citizenship and Immigration Services, Evelyn M. Upchurch, Director, Texas Center, Administrative Appeals Office, Defendants. |
Gregg Meyers, Gregg Meyers Law Firm, Charleston, SC, Robert Kendall, Jr., Robert Kendall Jr., Law Office, Washington, DC, for Plaintiff.
Lee Ellis Berlinsky, U.S. Attorneys Office, Charleston, SC, for Defendants.
This matter is before the court on Defendant United States' Motion to Dismiss for Lack of Subject Matter Jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
On October 6, 2004, Plaintiff American Hospitality Academy ("AHA") filed Form 1-129, Petition for a Nonimmigrant Worker, with the USCIS Texas Service Center. Through this Petition, AHA sought to be approved as an international cultural exchange program and to obtain Q-1 visas for five named beneficiaries pursuant to section 101(a)(15)(Q)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1101(a)(15)(Q)(i). A Q-status nonimmigrant alien is defined as "an alien having a residence in a foreign country which he has no intention of abandoning who is coming temporarily (for a period not to exceed 15 months) to the United States as a participant in an international cultural exchange program approved by the Secretary of Homeland Security for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the country of the alien's nationality and who will be employed under the same wages and working conditions as domestic workers." 8 U.S.C.A. § 1101(a)(15)(Q)(I).
By letter dated October 18, 2004, the Director of USCIS Texas Service requested additional information from AHA regarding the Form 1-129. AHA responded to the Director's request for additional information. By decision dated October 26, 2005, the Director of USCIS Texas Service Center denied AHA's petitions for Q-status for nonimmigrant workers, stating that the petition contained insufficient evidence of the requisite factors necessary for approval of the program as an international cultural exchange program. On November 22, 2004, AHA perfected a timely appeal of the Director's denial of its petition and submitted a brief in support of its appeal to DHS's Administrative Appeal Office ("AAO"). By decision dated July 13, 2005, the AAO dismissed AHA's appeal and affirmed the Director's decision dated October 26, 2004.
On October 21, 2005, Plaintiff brought this suit against the named defendants (hereinafter known as "the Government") pursuant to the Administrative Procedure Act ("APA"), asking this court to declare that the Government's decisions dated October 26, 2004 and July 13, 2004 were in violation of the INA and APA. Plaintiff asks the court to reverse or remand this matter to the agency for a decision consistent with the evidence, to award Plaintiff reasonable attorneys' fees and costs, and to grant such other relief as may be just and proper. The Government asserts that this court has no jurisdiction to review the discretionary decisions of the named defendants, and that the case should therefore be dismissed.
When evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) on the grounds that the complaint fails to state facts upon which jurisdiction can be founded, "all the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). The plaintiff has the burden of proving jurisdiction, and the court may go beyond the face of the complaint and consider evidence without converting the motion into one for summary judgment. See Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995); Richmond, Fredericksburg & Potomac R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir.1991).
Plaintiff asserts that the court's jurisdiction to review visa petition denials is under the Administrative Procedure Act, 5 U.S.C. §§ 551, et seq.,1 and 28 U.S.C. § 1331.2 The primary issue here is whether the Illegal Immigration Reform and Immigration Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 ("IIRIRA") (1996), divests this court of jurisdiction to review the instant controversy. The IIRIRA, which amended the Immigration and Nationality Act, contains a number of provisions limiting judicial review of INS decisions. The new scheme is set forth at 8 U.S.C. § 1252.
8 U.S.C. § 1252(a)(2)(B)(ii)
The Government argues that § 306 of the IIRIRA, which amends 8 U.S.C. § 1252(a)(2)(B)(ii), bars this court from reviewing the INS's refusal to approve AHA as an international cultural exchange program and the subsequent denial of AHA's petition for five nonimmigrant Q-1 visas. Title 8 U.S.C. § 1252(a)(2)(B)(ii), provides:
Notwithstanding any other provision of law, no court shall have jurisdiction to review iii (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this sub-chapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.
8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). The subchapter referred to is Subchapter II of Chapter 12 of Title 8, which covers § 1151 through § 1378. Section 1184, which falls squarely within this Subchapter, governs the admission of nonimmigrants, including Q-1 nonimmigrants. Specifically, § 1184 provides: "The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe." 8 U.S.C. § 1184(a)(1). Title 8 C.F.R. § 214.2(q)(2)(i), a Federal Regulation promulgated pursuant to § 1184, states that,
A nonimmigrant alien may be authorized to enter the United States as a participant in an international cultural exchange program approved by the Attorney General for the purpose of providing practical training, employment, and the sharing of the history, cultural, and traditions of the country of the alien's nationality. The period of admission is the duration of the approved international cultural exchange program or fifteen (15) months, whichever is shorter. A nonimmigrant alien admitted under this provision is classifiable as an international cultural exchange visitor in Q-1 status.
Title 8 C.F.R. § 214.2(q)(3)(i) states that, in order to be approved as an "international cultural exchange program" and be eligible to obtain Q-1 visas for nonimmigrant aliens, a United States employer:
shall petition the Attorney General on Form 1-129, Petition for a Nonimmigrant Worker, for approval of an international cultural exchange program which is designed to provide an opportunity for the American public to learn about foreign cultures. The United States employer must simultaneously petition on the same Form 1-129 for the authorization for one or more individually identified nonimmigrant aliens to be admitted in Q-1 status. These aliens are to be admitted to engage in employment or training of which the essential element is the sharing with the American public, or a segment of the public sharing a common cultural interest, of the culture of the alien's country of nationality. The international cultural exchange visitor's eligibility for admission will be considered only if the international cultural exchange program is approved.
Title 8 C.F.R. § 214.2(q)(3)(iii) further states that an "international cultural exchange program" must meet all of the following requirements:
(A) Accessibility to the public. The international cultural exchange program must take place in a school, museum, business or other establishment where the American public, or a segment of the public sharing a common cultural interest, is exposed to aspects of a foreign culture as part of a structured program. Activities that take place in a private home or an isolated business setting to which the American public, or a segment of the public sharing a common cultural interest, does not have direct access do not qualify.
(B) Cultural component. The international cultural exchange program must have a cultural component which is an essential and integral part of the international cultural exchange visitor's employment or training. The cultural component must be designed, on the whole, to exhibit or explain the attitude, customs, history, heritage, philosophy, or traditions of the international cultural exchange visitor's country of nationality. A cultural component may include structured instructional activities such as seminars, courses, lecture series, or language camps.
(C) Work component. The international cultural exchange visitor's employment or training in the United States may not be independent of the cultural component of the international cultural exchange program. The work component must serve as the vehicle to achieve the objectives of the cultural component. The sharing of the culture of the international cultural exchange visitor's country of nationality must result from his or her employment or training with the qualified employer in the United States.
Under these Regulations, it is not clear that section 1252(a)(2)(B)(ii) precludes judicial review of the INS's decision to approve or deny a petition for an international cultural exchange program. Neither the INA, nor the Regulations passed pursuant to the INA, specifies that the approval of an international cultural exchange program is within the discretion of the Attorney General or the Secretary of Homeland...
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