Todua v. Mayorkas

• Decision Date: 26 October 2021
• Docket Number: Civil Action 21-2738
• Parties: OREST TODUA, Plaintiff v. ALEJANDRO MAYORKAS, SECRETARY U.S. DEPARTMENT OF HOMELAND SECURITY TRACEY RENAUD, ACTING DIRECTOR, USCIS TERRI ROBINSON, DIRECTOR, USCIS Overland Park, KS Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

OREST TODUA, Plaintiff
v.
ALEJANDRO MAYORKAS, SECRETARY U.S. DEPARTMENT OF HOMELAND SECURITY

TRACEY RENAUD, ACTING DIRECTOR, USCIS TERRI ROBINSON, DIRECTOR, USCIS Overland Park, KS Defendants.

Civil Action No. 21-2738

United States District Court, E.D. Pennsylvania

October 26, 2021

MEMORANDUM

CHAD F. KENNEY, JUDGE

On May 17, 2021, the United States Citizenship and Immigration Services (“UCSIS”) denied Plaintiff Orest Todua's (“Todua”) I-485 Application to Adjust Status on the basis that he is ineligible to adjust status under section 245(k) of the Immigration and Nationality Act. Todua asks us to review USCIS's denial of his I-485 application and grant mandamus relief in the form of an order compelling USCIS to reopen and grant his I-485 application.

Defendants Alejandro Mayorkas, Secretary of the United States Department of Homeland Security, Tracy Renaud, Acting Director of USCIS, and Terri Robinson, Director of the USCIS Service Center in Overland, Kansas (collectively, “Defendants”) move to dismiss Todua's amended complaint, arguing Todua has failed to state a claim upon which relief can be granted. For the following reasons, we will grant Defendants' motion.

I. BACKGROUND^[1]

1

Todua is an adult Georgian citizen. Am. Compl. ¶ 1. He entered the United States on September 22, 2016 on a B-1/B-2 temporary visa, which authorized him to remain in the country until March 21, 2017. Id. ¶ 10. Todua remained in the United States after his lawful status expired. On August 3, 2017, less than 180 days after his B-1/B-2 status expired, Todua concurrently filed two forms: an I-485 Application for adjustment of status to become a Lawful Permanent Resident (“LPR”) and a Form I-140, an employment-based immigrant visa petition. Id.

On February 11, 2019, USCIS denied Todua's Form I-140 employment-based immigrant visa petition that he had filed concurrently with his I-485 application and had been pending since August 3, 2017. Am. Compl. ¶ 10; Ex. B, ECF No. 2-1, at 7.

On March 21, 2019, with his first I-485 Application pending, Todua filed a second Form I-140, and a second I-485 Application. Ex. C, ECF No. 2-1 at 10-11.

On July 3, 2019, USCIS denied Todua's first I-485 Application because his underlying Form I-140 Form had been denied. Am. Compl. ¶ 10; Ex. B, ECF No. 2-1, at 7-8. The denial letter explained, “[a] review of your file indicates that an Immigrant Petition for Alien Worker (Form 1-140) was filed by Orest Todua on his own behalf on August 3, 2017. Form 1-140 was subsequently denied on February 11, 2019. A review of USCIS records fails to demonstrate that you are the beneficiary of an approved immigrant visa petition.” Ex. B, ECF No. 2-1, at 8.

On February 7, 2020 USCIS approved Todua's second Form I-140 petition. Am. Compl. ¶ 11.

In 2019, USCIS granted Todua's request for advance parole which permitted him to leave the United States and return while his second I-485 Application remained pending. See Ex. D, ECF

2

No. 2-1 at 15. Todua left the country on August 2, 2020 and reentered the country on August 5, 2020 under advance parole. Id. at 17. His advance parole extended until August 3, 2021. Id. On September 4, 2020, Todua filed a third I-485 Application to adjust status. Id. ¶ 12. On October 30, 2020, USCIS denied Todua's second I-485 Application based on his failure to maintain lawful status after his B1/B2 visa expired on March 21, 2017. See Id. at 23. On May 17, 2021, USCIS denied Todua's third I-485 Application because the aggregate period during which he “failed to maintain a lawful status… exceeds the 180 day maximum excusable under INA 245(k).” Am. Compl. ¶ 12 (quoting Ex. F, ECF No. 2-1 at 23). Todua has exhausted his available administrative remedies. Id. ¶ 7.

On June 18, 2021, Todua initiated this action. See Compl., ECF No. 1. The same day, Todua filed his amended complaint challenging USCIS's denial of his I-485 application to adjust status.^[2] Todua asserts claims under the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 702, 706, and the Mandamus Act, 28 U.S.C. § 1361, alleging he suffered a legal wrong because USCIS erroneously and arbitrarily denied his I-485 application to adjust status. See Am. Compl., ECF No. 2. Todua asserts he is entitled to judicial review of the erroneous and arbitrary denial and requests that we issue mandamus relief compelling an adjudication approving Todua's Form I-485. See Id. ¶¶ 29, 32. Todua also asserts a claim under the Fifth Amendment of the United States Constitution, alleging the denial of his I-485 application deprived him of due process of law. Id. ¶ 33. Defendants

3

moved to dismiss Todua's amended complaint on September 22, 2021 and Todua responded in opposition on September 27, 2021. ECF Nos. 9, 10. Defendants submitted a reply on October 20, 2021, and Todua filed a surreply on October 22, 2021. ECF Nos. 11, 12.

II. LEGAL STANDARD

A. Motion to Dismiss under Rule 12(b)(6)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the complaint. “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.” Zuber v. Boscov's, 871 F.3d 255, 258 (3d Cir. 2017) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010)) (internal quotation marks omitted). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Our Court of Appeals requires us to apply a three-step analysis in assessing a 12(b)(6) motion: (1) we “must ‘tak[e] note of the elements [the] plaintiff must plead to state a claim;' ” (2) we “should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth;' ” and, (3) “[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 675). We permit “a curative amendment unless such an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

The APA requires agencies to engage in “reasoned decisionmaking, ” Michigan v. EPA, 576 U.S. 743, 750 (2015) (internal quotation marks omitted). Judicial review of whether an agency action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, ”

4

under the APA is narrow and courts may not substitute their own judgment for the agency's. 5 U.S.C. § 706(2)(A); FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). However, courts are “the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.” Chevron, U.S.A., Inc. v. Nat'l Res. Defense Council, Inc., 467 U.S. 837, 843 n.9 (1984). If “Congress has directly spoken to the precise question at issue” and “unambiguously expressed [its] intent, ” both the court and the agency are bound by the plain language Congress chose, and no deference is owed to an agency's contrary interpretation. Id. at 842-43 & n.9.

B. Statutory Framework

Section 245(a) of the Immigration and Nationalities Act (“INA”), codified at 8 U.S.C. § 1255(a), permits a noncitizen “inspected and admitted or paroled into the United States, ” to obtain “an adjustment of status.” § 1255(a). To be eligible, the noncitizen seeking a LPR status must have an “admission” into the United States, which the INA defines as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” § 1101(a)(13)(A).

Section 1255 also sets forth exceptions to the ability to adjust status for certain categories of noncitizens. See §§ 1255(c), (k). Relevant here, Section 1255(c) bars an otherwise eligible applicant from receiving a discretionary adjustment of status if he or she:

continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States…[and] any alien who was employed while the alien was an unauthorized alien, as defined in section 1324a(h)(3) of this title, or who has otherwise violated the terms of a nonimmigrant visa.

§§ 1255(c)(2), (8). Section 1255(k) creates an exemption to Section 1255(c)(2) and (8)'s bar to adjustment of status. Section 1255(k) provides a 180-day grace period for certain employment-

5

based applicants who would otherwise be ineligible for adjustment of status under Section 1255(c). The 180-day grace period is available to a noncitizen who is in the United States “pursuant to a lawful admission” and, “subsequent to such lawful admission has not, for an aggregate period exceeding 180 days ... failed to maintain continuously, a lawful status.” § 1255(k)(2). Thus, a noncitizen seeking LPR status whose lawful status has expired may seek protection under § 1255(k)'s grace period if the duration of his expired lawful status has not exceeded 180 days. See id.

The INA defines the terms “admissions” and “admitted” as “the lawful entry of the alien into the United Sates after inspection and authorization by an immigration officer.” § 1101(a)(13)(A). “An alien who is paroled under section 1182(d)(5) of this title…^[3] shall not be considered to have been admitted.” § 1101(a)(13)(B).

III. DISCUSSION^[4]

A. We will dismiss Todua's APA Claim

Defendants ask us to dismiss Todua's APA claim,...