Reyes Silva v. Miller

• Docket Number: 4:23CV3038
• Decision Date: 26 October 2023
• Parties: EDUARDO REYES SILVA, and ESTRELLA GISELLE RODRIGUEZ OLVERA, Plaintiffs, v. LOREN K. MILLER, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services, in his official capacity as well as his successors and assigns; ALEJANDRO MAYORKAS, Secretary, U.S. Department of Homeland Security, in his official capacity as well as his successors and assigns; UR MENDOZA JADDOU, Director, U.S. Citizenship and Immigration Services, in her official capacity as well as her successor and assigns; ANTONY J. BLINKEN, Secretary of State, U.S. Department of State, in his official capacity as well as his successors and assigns; PHILLIP SLATTERY, Director, National Visa Center, U.S. Department of State, in his official capacity as well as his successors and assigns; and RICHARD C. VISEK, Acting Legal Adviser, U.S. Department of State, in his official capacity as well as his successors and assigns, Defendants.
• Court: U.S. District Court — District of Nebraska

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EDUARDO REYES SILVA, and ESTRELLA GISELLE RODRIGUEZ OLVERA, Plaintiffs, v. LOREN K. MILLER, Director, Nebraska Service Center, U.S. Citizenship and Immigration Services, in his official capacity as well as his successors and assigns; ALEJANDRO MAYORKAS, Secretary, U.S. Department of Homeland Security, in his official capacity as well as his successors and assigns; UR MENDOZA JADDOU, Director, U.S. Citizenship and Immigration Services, in her official capacity as well as her successor and assigns; ANTONY J. BLINKEN, Secretary of State, U.S. Department of State, in his official capacity as well as his successors and assigns; PHILLIP SLATTERY, Director, National Visa Center, U.S. Department of State, in his official capacity as well as his successors and assigns; and RICHARD C. VISEK, Acting Legal Adviser, U.S. Department of State, in his official capacity as well as his successors and assigns, Defendants.

No. 4:23CV3038

United States District Court, D. Nebraska

October 26, 2023

MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTION TO DISMISS

BRIAN C. BUESCHER UNITED STATES DISTRICT JUDGE

In this case, Plaintiffs who are husband and wife assert claims pursuant to the Administrative Procedures Act (APA) and seek a writ of mandamus under 28 U.S.C. § 1361 based on allegations that government action on the processing of an I-601A Application for Provisional Unlawful Presence Waiver (I-601A application), and scheduling and conducting of a DS-260 immigrant visa interview for Plaintiff-Wife has been unreasonably delayed. Filing 1 at 1 (¶ 1). Plaintiffs seek an Order directing officials of the U.S Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) to complete all necessary steps to complete the adjudication of Plaintiff-Wife's I-601A Application and to schedule and conduct her DS-260 immigrant visa interview within twenty-one (21) days from the entry of such Order. Filing 1 at 3 (¶ 9). This case is before the Court on Defendants' Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Filing 20. For the reasons stated below, Defendants' Motion to Dismiss is granted.

I. INTRODUCTION

On a Rule 12(b)(6) motion to dismiss for failure to state a claim and a Rule 12(b)(1) “facial” challenge to subject matter jurisdiction, which requires application of Rule 12(b)(6) “safeguards,” the factual background is drawn from allegations in the Complaint taken as true. Bauer v. AGA Serv. Co., 25 F.4th 587, 589 (8th Cir. 2022) (explaining that on a Rule 12(b)(6) motion, a court must accept facts alleged in the complaint as true); Croyle by & through Croyle v. United States, 908 F.3d 377, 380-81 (8th Cir. 2018) (distinguishing between “facial” and “factual” challenges under Rule 12(b)(1) on the basis that Rule 12(b)(6) “safeguards” apply to the former). Thus, the following summary is drawn from the Complaint.

Plaintiff Eduardo Reyes Silva is apparently lawfully in the United States but plaintiff Estrella Giselle Rodriguez Olvera, his wife, is not. This appears to be so because on August 9 2018, Reyes Silva filed an I-130 petition with USCIS sponsoring Olvera for lawful permanent residence in the United States. Filing 1 at 7 (¶ 26). USCIS approved the I-130 application on August 5, 2019. Filing 1 at 7 (¶ 26). On November 9, 2020, Olvera filed an I-601A Application for Provisional Unlawful Presence Waiver which remains pending at USCIS's Nebraska Service Center. Filing 1 at 2 (¶¶ 1, 3, 27). Olvera needs an approved I-601A application before the National Visa Center will schedule her DS-260 immigrant visa interview at the U.S. Consulate in Ciudad Juarez, Mexico. Filing 1 at 2 (¶ 2). At the time the Complaint was filed in March 2023, Olvera's I-601A Application had been pending for approximately twenty-seven months. Filing 1 at 8 (¶ 30). Plaintiffs allege that during the period since Olvera filed her I-601A Application they “have suffered multiple hardships,” owing to Olvera's inability to become a lawful permanent resident and to reside in that status in the United States with her husband. Filing 1 at 3 (¶ 8). Slightly more specifically, they allege that the unreasonable delay in adjudicating the I-601A Application and the scheduling and conducting of the DS-260 immigrant visa interview “have caused, and are causing, Plaintiffs ongoing and substantial injuries personally and emotionally,” Filing 1 at 10 (¶ 44), as well as “stress and financial concerns.” Filing 1 at 12 (¶ 57).

Three Defendants named in Plaintiffs' Complaint are associated with USCIS. They are Alejandro Mayorkas, the Secretary of the Department of Homeland Security (DHS) including its sub-agency USCIS; Ur Mendoza Jaddou, the Director of USCIS; and Loren K. Miller, the Director of the USCIS Nebraska Service Center. Filing 1 at 5-6 (¶¶ 16, 18, 19). The Court will refer to these Defendants collectively as the USCIS Defendants. Three Defendants named in Plaintiffs' Complaint are associated with the DOS. They are Antony J. Blinken, the Secretary of State; Phillip Slattery, an officer of the DOS responsible for the operation of the DOS's National Visa Center; and Richard C. Visek, an officer of the DOS and its Acting Legal Adviser. Filing 1 at 5-6 (¶¶ 17, 20, 21). The Court will refer to these Defendants collectively as the DOS Defendants.^[1]

In their Complaint for Declaratory and Injunctive Relief and for Writ of Mandamus, Filing 1, Plaintiffs assert two claims for relief. Count I alleges violations by USCIS and the DOS of 5 U.S.C. § 555(b) of the APA, which Plaintiffs allege “requires agencies to conclude matters presented to them ‘within a reasonable time.'” Filing 1 at 9 (¶ 36) (quoting 5 U.S.C. § 555(b)). It also alleges “[a] court may ‘compel agency action unlawfully withheld or unreasonably delayed'” pursuant to 5 U.S.C. § 706(1). Filing 1 at 9 (¶ 37) (quoting 5 U.S.C. § 706(1)). Finally, for present purposes, it alleges, “Plaintiffs challenge only the reasonableness of Defendants' delays or inaction in the adjudication of Plaintiff-wife's I-601A application and scheduling and conducting of Plaintiff-wife's DS-260 immigrant visa interview, not the grant or denial of this filing.” Filing 1 at 9 (¶ 40). Count II seeks a writ of mandamus under 28 U.S.C. § 1361 to compel officers of USCIS and the DOS “to perform a duty owed to [Plaintiffs].” Filing 1 at 10 (¶ 46). Specifically, “Plaintiffs ask this Court to compel Defendants to perform their duties and complete the background checks for, and adjudication of, Plaintiff-wife's I-601A application and schedule and conduct Plaintiff-wife's DS-260 immigrant visa interview.” Filing 1 at 11-12 (¶ 55).

Defendants filed their Motion to Dismiss as to both counts. Filing 20. In their Brief in Support of Their Motion to Dismiss, Defendants assert that Plaintiffs “seek a judicial fast pass and request this Court to allow them to skip the line by compelling USCIS to immediately adjudicate the I-601A waiver and, once done, compelling the Department to immediately schedule and conduct the consular interview.” Filing 22 at 2. Defendants assert that Plaintiffs do not meet their burden of establishing jurisdiction and that even if they had they cannot overcome their failure to state a claim. Filing 22 at 2. Plaintiffs dispute Defendants' characterization of their Complaint as an attempt to “skip the line” or “seek a judicial fast pass” because they assert that they have followed the procedure required by law and have waited an unreasonable amount of time. Filing 24 at 2. They assert that they have a right to protect their individual rights and interests. Filing 24 at 2. Plaintiffs also assert that the Court has subject matter jurisdiction over their claims and that they have adequately pleaded those claims. Filing 24 at 3.

II. LEGAL ANALYSIS

A. Applicable Standards for Dismissal

Defendants seek dismissal pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction and pursuant to Rule 12(b)(6) for failure to state a claim. The Court will set out both sets of standards.

1. Lack of Subject Matter Jurisdiction Standards

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for a pre-answer motion to dismiss for “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). The Eighth Circuit Court of Appeals has explained that on a Rule 12(b)(1) motion,

The plaintiff bears “the burden of proving the existence of subject matter jurisdiction,” and we may look at materials “outside the pleadings” in conducting our review. [Herden v. United States, 726 F.3d 1042, 1046 (8th Cir. 2013) (en banc)] (quoting Green Acres Enters., Inc. v. United States, 418 F.3d 852, 856 (8th Cir. 2005)). Because of the “unique nature of the jurisdictional question,” Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990) (citation omitted), it is the court's duty to “decide the jurisdictional issue, not simply rule that there is or is not enough evidence to have a trial on the issue,” id. at 730. As such, if the court's inquiry extends beyond the pleadings, it is not necessary to apply Rule 56 summary judgment standards. Id. at 729. Rather, the court may receive evidence via “any rational mode of inquiry,” and the parties may “request an evidentiary hearing.” Id. at 730 (quoting Crawford v. United States, 796 F.2d 924, 928 (7th Cir. 1986)). Ultimately, the court must rule upon “the jurisdictional issue [unless it] is ‘so bound up with the merits that a full trial on the merits may be necessary to resolve the issue.'” Id. (quoting Crawford, 796 F.2d at 928).

Buckler v. United States, 919 F.3d 1038, 1044 (8th Cir. 2019); Am. Fam. Mut. Ins. Co. v. Vein Centers for Excellence, Inc., 912 F.3d 1076, 1081 (8th Cir. 2019) (“[A] motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) raises a...