Polfliet v. Rodriguez

• Decision Date: 28 September 2017
• Docket Number: Civil Action No.: 5:16-cv-03358-JMC
• Court: U.S. District Court — District of South Carolina
• Parties: Robert John Polfliet and Masato Kimiki, Plaintiffs, v. Leon Rodriguez, Director, U.S. Citizenship & Immigration Services and Loretta Lynch, Attorney General of the United States, Defendants.

Robert John Polfliet and Masato Kimiki, Plaintiffs, v. Leon Rodriguez, Director, U.S. Citizenship & Immigration Services andLoretta Lynch, Attorney General of the United States,¹ Defendants.

Civil Action No.: 5:16-cv-03358-JMC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ORANGEBURG DIVISION

September 28, 2017

ORDER AND OPINION

Plaintiffs Robert John Polfliet and Masato Kimiki (together "Plaintiffs") filed the instant action against Defendants Leon Rodriguez, Director of the United States Citizenship and Immigration Services² ("USCIS"), and Loretta Lynch, Attorney General of the United States, (together "Defendants") seeking to have the court set aside the USCIS's decision to revoke Kimiki's visa petition pursuant to the Adam Walsh Child Protection and Safety Act of 2006 (the "Adam Walsh Act"), 42 U.S.C. §§ 16901-16997. (ECF No. 1.)

This matter is before the court on Defendants' Motion to Dismiss pursuant to Rules³ 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (ECF No. 6). Plaintiffs oppose Defendants' Motion to Dismiss asserting that "the [c]ourt should deny this motion, order thegovernment to file the certified administrative record, and set a briefing schedule." (ECF No. 11 at 1.) For the reasons set forth below, the court GRANTS Defendants' Motion to Dismiss pursuant to Rule 12(b)(1) and DENIES AS MOOT Defendants' Motion to Dismiss pursuant to Rule 12(b)(6).

I. RELEVANT BACKGROUND TO PENDING MOTION

Polfliet is a United States citizen residing in Orangeburg, South Carolina. (ECF No. 1 at 2 ¶ 1.) Kimiki is Polfliet's stepson and a Japanese national and citizen. (Id. ¶ 2.) Plaintiffs allege that Polfliet as a member of the United States Air Force "was stationed in Japan in the late 1990s and early 2000s." (ECF No. 1 at 3 ¶ 8.) While in Japan, Polfliet allegedly met and eventually married Kimiki's biological mother, also a Japanese national and citizen. (Id. ¶¶ 9, 12.) Plaintiffs further allege that at some unspecified time before 2006, Polfliet was "convicted by a general court-martial before a military judge sitting alone of various crimes, including 18 U.S.C. § 2252A for possession of child pornography." (ECF No. 1 at 3 ¶ 10.)

After 2006 and pursuant to the Immigration and Nationality Act (the "INA"),⁴ 8 U.S.C. §§ 1101-07, 1151-1381, 1401-1504, 1521-1525 & 1531-1537, Plaintiffs allege that Polfliet submitted a Form I-130, Petition for Alien Relative to the USCIS for purposes of obtaining an immigrant visa as to his wife.⁵ (ECF No. 1 at 3 ¶ 14.) The USCIS approved Polfliet's petitionfor his wife. (Id.) Thereafter, Kimiki allegedly moved to the United States in approximately 2008. (Id. ¶ 15.) On June 18, 2012, the USCIS allegedly approved a Form I-130, Petition for Alien Relative as to Kimiki. (Id. at 4 ¶ 16.)

On November 18, 2013, Plaintiffs allege that they received a notice conveying the USCIS's intent to revoke Kimiki's immigrant visa pursuant to the Adam Walsh Act. (Id. ¶ 19; see also ECF No. 6-2 at 2.) Plaintiffs further allege that Polfliet responded to the notice of revocation, but the USCIS nevertheless revoked Kimiki's status on September 2, 2015, finding that Polfliet was ineligible to file a visa petition under the INA because of his child pornography conviction. (ECF Nos. 1 at 4 ¶¶ 21-22 & 6-2 at 2-3.) As part of its findings in accordance with the Adam Walsh Act, the USCIS observed that Polfliet's "evidence does not demonstrate that you pose no risk to the safety and well-being of your beneficiary or beneficiaries." (ECF No. 6-2at 6.) On July 18, 2016, the Board of Immigration Appeals affirmed the USCIS's revocation of Kimiki's visa. (ECF Nos. 1 at 4 ¶¶ 23-24 & 6-3 at 3.)

As a result of the foregoing, Plaintiffs filed an action in this court on October 11, 2016, alleging that application of the Adam Walsh Act to Kimiki's immigrant visa was arbitrary and capricious ("Count One") under the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701-706,⁶ improperly retroactive ("Count Four") and violated Plaintiffs' procedural due process rights ("Counts Two and Three") protected by the Fifth Amendment to the United States Constitution. (ECF No. 1 at 4 ¶ 25-7 ¶ 54.) Additionally, Plaintiffs allege that they are entitled to an award of attorney's fees ("Count Five") pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. (Id. at 7 ¶¶ 55-59.) On January 13, 2017, Defendants filed the instant Motion to Dismiss. (ECF No. 11.) The parties then proceeded to respond, reply, and file supplemental authorities for the court's review. (ECF Nos. 11, 14, 16, 19 & 20.)

II. JURISDICTION

This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, as a federal question under the APA is presented. (ECF No. 1 at 4 ¶ 25-5 ¶ 37.) Additionally, Plaintiffs demonstrate the court's jurisdiction through their allegations of a deprivation of their Fifth Amendment right to procedural due process. (ECF No. 1 at 6 ¶¶ 43-47.)

III. LEGAL STANDARD

A. Motions to Dismiss Pursuant to Rule 12(b)(1) for Lack of Subject Matter Jurisdiction

Article III of the Constitution limits the jurisdiction of the federal courts to theconsideration of "cases" and "controversies." U.S. Const. art. III, § 2. "Federal courts are courts of limited subject matter jurisdiction, and as such there is no presumption that the court has jurisdiction." Pinkley, Inc. v. City of Fredrick, Md., 191 F.3d 394, 399 (4th Cir. 1999). A Rule 12(b)(1) motion for lack of subject matter jurisdiction raises the fundamental question of whether a court has jurisdiction to adjudicate the matter before it. Fed. R. Civ. P. 12(b)(1). In determining whether jurisdiction exists, the court is to "regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). "The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. (citation omitted). The plaintiff bears the burden of proof on questions of subject matter jurisdiction. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).

B. Motions to Dismiss Pursuant to Rule 12(b)(6) for Failure to State a Claim

A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted "challenges the legal sufficiency of a complaint." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) ("A motion to dismiss under Rule 12(b)(6) . . . does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses."). "In considering a 12(b)(6) challenge to the sufficiency of a complaint, this Rule must be applied in conjunction with the liberal pleading standard set forth in Federal Rule of Civil Procedure 8(a)." Jenkins v. Fed. Bureau of Prisons, C/A No. 3:10-1968-CMC-JRM, 2011 WL 4482074, at *2 (D.S.C. Sept. 26, 2011). Rule 8(a) provides that to be legally sufficient, apleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).

A motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support her claim and would entitle her to relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When considering a motion to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999); Mylan Labs., Inc., 7 F.3d at 1134. "In so doing, a court may consider documents attached to the complaint or the motion to dismiss 'so long as they are integral to the complaint and authentic.'" Kensington Volunteer Fire Dep't, Inc. v. Montgomery Cty., Md., 684 F.3d 462, 467 (4th Cir. 2012) (quoting Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

IV. ANALYSIS

A. The Parties' Arguments

1. Defendants

Defendants move the court to dismiss the Complaint pursuant to either Rule 12(b)(1) or 12(b)(6). (ECF No. 6 at 1.) First, Defendants argue that they are entitled to dismissal of Counts One and Four because the court lacks jurisdiction to consider these claims. Specifically, Defendants assert that the court is barred from reviewing their decision "because both USCIS'sdecision to revoke the petition under 8 U.S.C. § 1155,⁷ and its 'no risk' determination under 8 U.S.C. § 1154,⁸ are discretionary agency decisions specifically exempted from judicial review by that statutory provision." (ECF No. 6 at 7-8 (citing 8 U.S.C. § 1252(a)(2)(B)(ii)⁹).) In this regard, Defendants assert that "all claims in Plaintiffs' Complaint that challenge USCIS's discretionary 'no risk' determination and consequent denial of the I-130 fall within the scope of § 1252(a)(2)(B)'s bar on judicial review." (Id. at 12 (citing, e.g., 8 U.S.C. § 1154(a)(1)(A)(viii); Gao v. Holder, 595 F.3d 549, 557 (4th Cir. 2010)).)

Defendants also move the court to dismiss the Complaint pursuant to Rule 12(b)(6). (ECF No. 6 at 17.) First, Defendants assert that Plaintiffs' allegations-"(1) the Adam Walsh Act...