Obiri v. Holder

Decision Date24 March 2011
Docket NumberCIVIL ACTION H-10-208
CourtU.S. District Court — Southern District of Texas

Pending before the Court is a motion to dismiss (instrument #4) the above referenced action under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction or, alternatively, 12(b)(6) for failure to state a claim upon which relief can be granted, filed by Defendants Sandra Heathman, District Director, Houston Field Office, United States Citizenship and Immigration Services ("USCIS"), Janet Napolitano, Secretary, United States Department of Homeland Security ("DHS"), 1 and Eric Holder, United States Attorney General.

Plaintiffs complain that Defendants failed to apply the law correctly in assigning the wrong priority date to a visa petition filed by Alaba Obiri for Tolulope Obiri and subsequently arbitrarily, capriciously, wrongfully, and unlawfully denied Toupe Obiri's application for lawful permanent resident status. They sue Defendants in their official capacity only and seek declaratory, injunctive, and mandamus relief. This action is grounded in a provision of the Child Status Protection Act (CSPA), Immigration and Naturalization Act ("INA") § 203(h)(3), 8 U.S.C. § 1153(h)(3), which Plaintiffs argue permits aged-out derivative beneficiaries of third-or fourth-preference (F3 and F4, respectively) visa petitions to automatically convert their derivative petitions to second-preference (F2B) visa petitions and to retain the original priority date of the initial petitions filed on behalf of their parents.

Plaintiffs assert that the court has federal question jurisdiction under 28 U.S.C. § 1331, the Mandamus Act, 28 U.S.C. § 1361, the Administrative Procedure Act, 5 U.S.C. § 701, et seq., and the Declaratory Judgment Act, 28 U.S.C. § 2201, et seq.2

Factual Background

Because in Plaintiffs' response (#6) to Defendants' motion to dismiss Plaintiffs state that they "generally concur with the statement of facts" provided by Defendants, though not with thelegal arguments and justifications they make, and because Defendants' recitation of the facts about the procedural history is more detailed, explanatory, and necessary to the application of the relevant law than that in Plaintiffs' complaint, the Court summarizes Defendants' Statement of Facts.

Plaintiff Alaba Obiri and his daughter, Tolulope Obiri are natives and citizens of Nigeria. On or about September 8, 1997, the brother of Alaba Obiri, Nicholas I. Obiri, who was a United States citizen, filed a fourth-preference Petition for Alien Relative (Form I-130) on Alaba Obiri's behalf pursuant to 8 U.S.C. § 1153(a)(4). That petition was approved on May 12, 1998 and given a priority date of September 8, 1997.3 Alaba Obiri was the primary beneficiary of the F4 visa petition, while his daughter, who was fifteen years old at the time the petition was filed, 4 was listed as a derivative beneficiary on the petition.

In August 2008, visas became available for nationals of Nigeria who were beneficiaries of fourth-preference petitions witha priority date in September 1997. 8 C.F.R. § 245.1(g)(1); Dept. of State Visa Bulletin ("Bulletin"), Vol. VIII, No. 121 (August 2008)(Exhibit 1 to #4). On March 2, 2009, Alaba Obiri was accorded lawful permanent residence based on the F4 visa petition filed by his brother. Exhibit 3. At this point, Tolulope Obiri was twenty-seven years old and had "aged out" (turned twenty-one).5

On April 9, 2009 Alaba Obiri filed a second preference ("F2B") visa petition under 8 U.S.C. § 1153(a)(2)(B) on behalf of his unmarried daughter.6 At the same time Tolulope Obiri filed an Application to Register Permanent Residence or Adjust Status (Form I-485) with USCIS. Plaintiffs argue that the F2B petition filed by Alaba Obiri on behalf of his unmarried daughter should be accorded the priority date from the F4 petition filed by her uncle on her father's behalf, i.e., September 8, 1997. Plaintiffs contend that when a derivative beneficiary ages out, under 8 U.S.C. § 1153(h)(3) the petition shall "automatically be converted to the propercategory and the alien shall retain the original priority date issued upon the receipt of the original petition."7

On September 28, 2009 USCIS approved the F2B petition, but denied Tolulope Obiri's adjustment petition on the ground that she failed to demonstrate that an immigrant visa was immediately available to her when she filed the application.8 According to Defendants, at the time she filed her application for adjustment of status, F2B visas for Nigeria were only available to those with a priority date on or before September 1, 2000. Bulletin, Vol XI, No. 7 (April 2009)(Exhibit 2 to #4).

In accord with the Board of Immigration Appeals' ("BIA's") decision in Matter of Wang, 25 I&N Dec. 28, (BIA 2009)(holding that the automatic conversion rule and priority date retention of 8 U.S.C. § 1153(h)(3) did not apply to fourth-preference derivative beneficiaries who age out and on whose behalf a second-preference petition is later filed by a different petitioner)9(copy attachedas Ex. 3 to #4), USCIS found that Tolulope Obiri could not claim her father's priority date of September 8, 1997, based on his brother's application date, as her own.

On March 4, 2010 USCIS began removal proceedings against Tolulope Obiri because she has remained in the United States for a time longer than permitted. Her initial hearing before an immigration judge was scheduled on May 19, 2010, but has been rescheduled several times, most recently three times at the request of Plaintiff's counsel because of this action, and is currently set for May 25, 2011. #17, Defendants' Status Report.

Plaintiffs state that they have exhausted all administrative remedies. They seek a writ of mandamus to compel Defendants to perform their duties and properly adjudicate Plaintiff's petition and application. They also allege that Defendants' policies andprocedures violate the Administrative Procedures Act and constitute arbitrary and capricious agency action.

Plaintiffs complain that despite their requests for reconsideration, USCIS has not assigned the correct visa priority date to Defendant's application. Plaintiffs assert they have been greatly damaged and that Alaba Obiri has been constructively denied the ability to petition for the unification of his family.

Standard of Review

Federal Rule of Civil Procedure 12(b)(1)

"Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims." Stockman v. Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1992). If the court determines there is no subject matter jurisdiction, it must dismiss the suit. Id.

Rule 12(b)(1) allows a party to move for dismissal of an action for lack of subject matter jurisdiction. The party asserting that subject matter exists, here Plaintiffs, must bear the burden of proof for a 12(b)(1) motion. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The court may determine whether subject mater jurisdiction is lacking by any of three approaches: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Id. at 161.A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is characterized as either a "facial" attack, i.e., the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a "factual" attack, i.e., the facts in the complaint supporting subject matter jurisdiction are questioned. In re Blue Water Endeavors, LLC, Bankr. No. 08-10466, Adv. No. 101015, 2011 WL 52525, *3 (E.D. Tex. Jan. 6, 2011), citing Rodriguez v. Texas Comm'n of Arts, 992 F. Supp. 876, 878-79 (N.D. Tex. 1998), aff'd, 199 F.3d 199 (5th Cir. 2000). A facial attack happens when a defendant files a Rule 12(b)(1) motion without accompanying evidence. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). In a facial attack, allegations in the complaint are taken as true. Blue Water, 2011 WL 52525 at *3, citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5th Cir. 1995).

If it is a factual attack, the Court may consider any evidence (affidavits, testimony, documents, etc.) submitted by the parties that is relevant to the issue of jurisdiction. Id., citing Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir. 1989). A defendant making a factual attack on a complaint may provide supporting affidavits, testimony or other admissible evidence. Patterson v. Weinberger, 644 F.3d 521, 523 (5th Cir. 1981). The plaintiff, to satisfy its burden of proof, may also submit evidence to show by a preponderance of the evidence that subject matter jurisdiction exists. Id. In resolving a factual attack on subjectmatter jurisdiction under Rule 12(b)(1), the district court, which does not address the merits of the suit, 10 has significant authority "'to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" Robinson v. Paulson, No. H-06-4083, 2008 WL 4692392, *10 (S.D. Tex. Oct. 22, 2008), quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997), and citing Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986). The court's consideration of such matters outside the pleadings does not convert the motion to one for summary judgment under Rule 56(c). Robinson, 2008 WL 4692392 at *10, citing Garcia, 104 F.3d at 1261.

Federal Rule of Civil Procedure 12(b)(6) When a district court reviews a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), it must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true. Randall

D. Wolcott, MD, PA v. Sebelius, _ F.3d _, No. 10-10290, 2011 WL 870724, *4 (5th Cir. Mar. 15,...

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