Ogbolumani v. U.S. Citizenship and Immigration, 06 C 6009.

• Decision Date: 05 December 2007
• Docket Number: No. 06 C 6009.,06 C 6009.
• Citation: 523 F.Supp.2d 864
• Parties: Lacey OGBOLUMANI and David Ogbolumani, Plaintiffs, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

523 F.Supp.2d 864

Lacey OGBOLUMANI and David Ogbolumani, Plaintiffs, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

No. 06 C 6009.

United States District Court, N.D. Illinois, Eastern Division.

December 5, 2007.

Uche O. Asonye, Mark Pando, Asonye and Associates, Chicago, IL, for Plaintiffs.

Daniel M. Tardiff, AUSA; United States Attorney's Office (NDIL), Chicago, IL, for Defendants.

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge.

This matter is before the court on Defendants' ("Government") motion to dismiss. For the reasons, stated below, we grant in part and deny in part the Government's motion.

BACKGROUND'

Plaintiffs David Ogbolumani ("David") and Lacey Ogbolumani ("Lacey") are husband and wife. Plaintiffs allege that David is a citizen of Nigeria and that he first entered the United States on September 30, 1990. Plaintiffs further allege that David entered into a good faith marriage with Lacey, a United States citizen, on May 20, 2000. On January 16, 2001, Lacey filed a Visa Petition on Form 1-130 to classify her husband David as an "immediate relative" of a United States citizen ("Lacey's Visa Petition"). Also on January 16, 2001, David concurrently filed an Application to Adjust Status on Form 1-485 to become a lawful permanent resident of the United States ("Adjustment of Status Application"). On May 20, 2002, the Immigration and Naturalization Service ("INS") sent Lacey a "notice of intent to deny petition for alien relative." This notice advised Lacey that an investigation by the INS had revealed that David had previously entered into a sham marriage in 1997 for the purpose of evading immigration laws, and therefore it was the intention of the INS to deny Lacey's Visa Petition. On March 25, 2004, the United States Citizenship and Immigration Services ("CIS") (one of the successor agencies to the INS, as of November 25, 2002) denied David's Adjustment of Status Application for the reason that Lacey's Visa Petition had been denied and, therefore, David was not eligible for Adjustment of Status since no visa was available to David. On October 6, 2006, Lacey's Visa Petition denial was affirmed on appeal by the Board of Immigration Appeals ("BIA"), in a per curiam order.

Plaintiffs filed the instant action on November 3, 2006, seeking relief under the Declaratory Judgment Act, 28 U.S.C. § 2202 et seq., and the Administrative Procedures Act, 5 U.S.C. § 702 et seq. Plaintiffs are also alleging "[v]iolations of the Fifth Amendment, Due Process and Equal Protection Clauses." Plaintiff Lacey claims that the decision by the CIS to deny her Visa Petition should be reversed. Plaintiff David claims that the decision by the CIS to deny his Adjustment of Status Application should be reversed. The Government filed the instant motion to dismiss, asserting that the court lacks jurisdiction to review the CIS's decisions and that Plaintiffs have failed to state a claim with regard to their constitutional claims.

LEGAL STANDARD

In ruling on a motion to dismiss, brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir.2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir.1991). In order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir.1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a `speculative level"' and "if they do not, the plaintiff pleads itself out of court." E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir.2007) (quoting in part Bell Atlantic Corp. v. Twombly, ___ U.S. ___, ___, 27 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007)). Under the current notice pleading standard in federal courts a plaintiff need not "plead facts that, if true, establish each element of a `cause of action...." See Sanjuan v. Amer. Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir.1994) (stating that "[a]t this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint" and that "[m]atching facts against legal elements comes later"). The Seventh Circuit has explained that "[o]ne pleads a `claim for relief by briefly describing the events." Sanjuan, 40 F.3d at 251; Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir.1998) (stating that "[p]laintiffs need not plead facts or legal theories; it is enough to set out a claim for relief'). The plaintiff need not allege all of the facts involved in the claim and can plead conclusions. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.2002); Kyle, 144 F.3d at 455. However, any conclusions pled must "`provide the defendant with at least minimal notice of the claim,'" Kyle, 144 F.3d at 455 (quoting Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir.1995)), and the plaintiff cannot satisfy federal pleading requirements merely "by attaching bare legal conclusions to narrated facts which fail to outline the bases of [his] claims." Perkins, 939 F.2d at 466-67.

DISCUSSION

The Government primarily argues that this court lacks jurisdiction to review both decisions of the CIS, namely the CIS's decision to deny David's Application for Adjustment of Status and the CIS's decision to deny Lacey's Visa Petition. The Government contends that both decisions were discretionary determinations and that this court is stripped of jurisdiction to review the CIS's decisions, pursuant to 8 U.S.C. § 1252(a)(2)(B)(i) & (ii). The Government also moves to dismiss with respect to Plaintiffs' constitutional claims, contending that Plaintiffs have not adequately pled their constitutional claims. Plaintiffs oppose the motion to dismiss contending that this court is not stripped of jurisdiction and that Plaintiffs' complaint states a cause of action for their constitutional claims.

We will first address the issue of Plaintiffs' constitutional claims and we will next address whether the court is stripped of jurisdiction to review (1) the denial by CIS of David's Adjustment of Status Application and (2) the denial by CIS of Lacey's Visa Petition.

I. Constitutional Claims

The Government has filed a motion to dismiss Plaintiffs' constitutional claims arguing that Plaintiffs have not adequately pled their constitutional claims. In their complaint, Plaintiffs state in regard to their constitutional claims, that "due to the statutory scheme, as applied to Plaintiffs, [sic] produced arbitrary and capricious decision-making by federal officials as to when an immigrant visa petition will be approved, [sic] the scheme also violates the Equal Protection Clause of the Fourteenth Amendment." (Compl.Par. 89). Although the Plaintiffs have asserted an Equal Protection claim under the Fourteenth Amendment, "the Fourteenth Amendment applies to the states" and "the Fifth Amendment applies to the federal government and also `contains an equal protection, component.'" See United States v. Hook, 471 F.3d 766, 774 (7th Cir.2006) (quoting in part San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542 n. 21, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987)). Therefore, we will treat Plaintiffs' claims as Due Process and Equal Protection claims under the Fifth Amendment.

Before we discuss whether the Plaintiffs have adequately pled their constitutional claims, it is necessary for us to address the question of whether we are stripped of jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i) & (ii) to review Plaintiffs' constitutional claims. The Seventh Circuit has found that because § 1255 Adjustment of Status benefit is a discretionary form of relief, specified under § 1252(a)(2)(B)(i), the courts are stripped of jurisdiction to review an alien's constitutional claims relating to Adjustment of Status. Dave v. Ashcrof 363 F.3d 649, 652 (7th Cir.2004). Therefore, we are stripped of jurisdiction to review David's constitutional claims. As to Lacey's constitutional claims, we note that Lacey filed for a Visa Petition benefit under § 1254, which is not a form of discretionary relief specified under § 1252(a)(2)(B)(i), nor is it considered a discretionary relief under § 1252(a)(2)(B)(ii), as explained later in this opinion. Therefore, we find that § 1252(a)(2)(B)(i) & jurisdiction-stripping provisions do not apply to a review of the denial of Lacey's constitutional rights relating to her Visa Petition.

In support of Plaintiffs' claim that Lacey's constitutional rights have been violated relating to Lacey's Visa Petition, Plaintiffs have stated in a conclusory fashion that the Government official that interviewed David's first wife in relation to David's first wife's Visa Petition used coercive tactics. (Compl.Par. 45). However, Plaintiffs also have alleged that the interview tactics did not lead David's first wife to withdraw her Visa Petition. (Compl.Par. 45). First, we note that the alleged victim of the constitutional violation was not David or Lacey, but was David's first wife. Second, Plaintiffs have not indicated that the alleged actions by the Government resulted in a violation of Lacey's constitutional rights.

Plaintiffs have dedicated most of their complaint to legal arguments indicating that Plaintiffs are dissatisfied with the outcome of the adjudication of Lacey's Visa Petition by the CIS. Plaintiffs' conclusory claim as to constitutional violations does not satisfy the federal pleading requirements. Concentra, 496 F.3d at 776, Kyle, 144 F.3d at 455 (stating that a plaintiff must "provide the defendant with...