Rodriguez v. Mayorkas
| Decision Date | 27 January 2023 |
| Docket Number | 21-CV-3129 (MKB) |
| Parties | CRISTIAN RODRIGUEZ, Plaintiff, v. ALEJANDRO MAYORKAS, Secretary, Department of Homeland Security, UR MENDOZA JADDOU, Director of U.S. Citizenship and Immigration Services, and SUSAN DIBBINS, Chief of the USCIS Administrative Appeals Office, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Cristian Rodriguez commenced the above-captioned action on June 2, 2021, against Defendants Alejandro Mayorkas, Tracy Renaud,[1] and Susan Dibbins seeking declarations that the denials of his petition for U nonimmigrant status (“U Visa”)[2] and application for a waiver of inadmissibility pursuant to 8 U.S.C. §§ 1182(d)(14) and 1182(d)(3) violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. (Compl., Docket Entry No. 1.) Plaintiff also seeks a declaratory judgment that he is statutorily eligible for a U Visa and an order requiring Defendants to reopen and grant his U Visa petition. (Id. at 16.) In the alternative, Plaintiff seeks an order requiring Defendants to reconsider his U Visa petition and application for a waiver of inadmissibility. (Id.)
On December 7, 2021, Defendants moved to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure; Plaintiff opposes the motion.[3] For the reasons set forth below, the Court grants Defendants' motion and dismisses this action.
Plaintiff is a citizen of Ecuador, a resident of Queens, New York, and has lived in the United States since 2004. Rodriguez v Nielsen, No. 16-CV-7092, 2018 WL 4783977, at *1 (E.D.N.Y. Sept. 30, 2018). In November of 2011, an individual broke into Plaintiff's home, removed a knife from a kitchen drawer, and attempted to enter the locked room where Plaintiff was trapped with his infant son and his son's mother. (Compl. ¶ 16.) Plaintiff subsequently assisted law enforcement by helping police officers identify the perpetrator and cooperated with the Queens District Attorney's Office in the perpetrator's prosecution. (Id. ¶ 17.) The perpetrator pled guilty to burglary in the second degree,[4] (id. ¶ 18), and a representative from the Queens District Attorney's Office later submitted a U Nonimmigrant Status Certification attesting to Plaintiff's assistance with the investigation and prosecution, Nielsen, 2018 WL 4783977, at *2.
On August 12, 2015, Plaintiff filed a petition for a U Visa and also applied for a waiver of inadmissibility pursuant to 8 U.S.C. §§ 1182(d)(14) and 1182(d)(3). (Compl. ¶¶ 20-21.) As part of his application, Plaintiff attached the certification from the Queens District Attorney's Office. (Id. ¶ 20.) More than a year later, following inaction on his U Visa petition, Plaintiff filed suit under the APA, seeking, among other relief, declaratory, mandamus, and injunctive relief in connection with the delay in processing his U Visa petition. (Id. ¶ 23; see also Nielsen, 2018 WL 4783977, at *1.) On September 30, 2018, the Court dismissed as premature Plaintiff's application for adjudication of his U Visa petition and directed Defendants to adjudicate Plaintiff's application for work authorization within ninety days or issue Plaintiff an Employment Authorization Document pursuant to 8 U.S.C. § 1184(p)(16) and 8 C.F.R. § 274a.13(d). Nielsen, 2018 WL 4783977, at *22. In a joint stipulation agreeing to dismiss that action, the U.S. Citizenship and Immigration Services (USCIS) agreed that by November 30, 2018, it would either place Plaintiff on the U Visa Waiting List pursuant to 8 C.F.R. § 214.14(d)(2) or issue correspondence pursuant to 8 C.F.R. § 103.2(b)(8) if it required additional evidence to adjudicate Plaintiff's eligibility for placement on the U Visa Waiting List. (Compl. ¶ 23; Rodriguez v. Nielsen, No. 16-CV-7092, Docket Entry No. 55.)
On November 15, 2018, USCIS notified Plaintiff of its intent to both (1) deny his U Visa petition for failure to establish a qualifying crime and (2) deny his application for a waiver of inadmissibility due to criminal charges for which Plaintiff was arrested in 2016 and 2018. (Compl. ¶ 24.) Plaintiff subsequently provided USCIS with additional information regarding the home invasion and presented documentation showing that the majority of charges at issue in Plaintiff's arrests were ultimately dismissed. (Id. ¶ 25.)
On January 16, 2019, USCIS denied Plaintiff's U Visa petition, finding that Plaintiff had not established that he was a victim of a qualifying criminal activity. (Id. ¶ 26; see Denial of Form I-918, annexed to Decl. of Christopher D. Volpe, as Ex. B, Docket Entry No. 24-2.) USCIS also denied Plaintiff's application for a waiver of inadmissibility, concluding that the record before it did not establish that such a waiver would be in the public or national interest. .) Plaintiff moved for reconsideration of the denial of his U Visa petition and to reopen and reconsider the denial of his waiver of inadmissibility application. (Compl. ¶ 28.) On March 14, 2019, USCIS denied both motions.[5]
On April 13, 2019, Plaintiff appealed the denial of his U Visa petition.[6] (Id. ¶ 30.) The Administrative Appeals Office dismissed Plaintiff's appeal on June 2, 2020, finding that Plaintiff was ineligible for a U Visa because he was not the victim of qualifying criminal activity and had not established that he was either admissible to the United States or that an applicable ground of inadmissibility had been waived. (Id. ¶ 31; Denial of Administrative Office Appeal, annexed to Decl. of Christopher D. Volpe, as Ex. E, Docket Entry No. 24-5.)
A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure when the court “lacks the statutory or constitutional power to adjudicate it.” Huntress v. United States, 810 Fed.Appx. 74, 75 (2d Cir. 2020) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.A.R.L., 790 F.3d 411, 416-17 (2d Cir. 2015) (quoting Makarova, 201 F.3d at 113); Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir. 2013) (per curiam) (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)). “‘[C]ourt[s] must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of [the] plaintiff,' but ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'” Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citation omitted) (first quoting Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006); and then quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)), aff'd, 561 U.S. 247 (2010). Ultimately, “the party asserting subject matter jurisdiction ‘has the burden of proving by a preponderance of the evidence that it exists.'” Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (quoting Makarova, 201 F.3d at 113); see also Suarez v. Mosaic Sales Sols. U.S. Operating Co., 720 Fed.Appx. 52, 53 (2d Cir. 2018) (citing Morrison, 547 F.3d at 170); Clayton v. United States, No. 18-CV-5867, 2020 WL 1545542, at *3 (E.D.N.Y. Mar. 31, 2020) (quoting Tandon, 752 F.3d at 243); Fed. Deposit Ins. Corp. v. Bank of N.Y. Mellon, 369 F.Supp.3d 547, 552 (S.D.N.Y. 2019) (quoting Tandon, 752 F.3d at 243). ii. Rule 12(b)(6)
In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court “must construe [the complaint] liberally, accepting all factual allegations therein as true and drawing all reasonable inferences in the plaintiffs' favor.” Sacerdote v. N.Y. Univ., 9 F.4th 95, 106-07 (2d Cir. 2021) (citing Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d Cir. 2019); see also Vaughn v. Phoenix House N.Y. Inc., 957 F.3d 141, 145 (2d Cir. 2020) (same). A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Bacon v. Phelps, 961 F.3d 533, 540 (2d Cir. 2020) (quoting Twombly, 550 U.S. at 570). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); Cavello Bay Reinsurance Ltd. v. Shubin Stein, 986 F.3d 161, 165 (2d Cir. 2021) (quoting Iqbal, 556 U.S. at 678). Although all allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678; Vaughn, 957 F.3d at 145 (quoting Iqbal, 556 U.S. at 678).
Defendants contend that Plaintiff's claims must be dismissed because the Court lacks subject matter jurisdiction to review the denial of Plaintiff's waiver of inadmissibility application, and therefore cannot review the denial of Plaintiff's U Visa petition. (Defs.' Mem. 2-3.) In support, Defendants argue that the Court's review of the denial of the waiver of inadmissibility application is foreclosed because decisions to grant such waivers are subject to the Attorney General's discretion and are accordingly judicially unreviewable pursuant to 8 U.S.C § 1252(a)(2)(B). (Id. at 11.) Defendants also argue that, contrary to Plaintiff's...
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