Aji Easwarankudyil, et al v. Mark Hazuda, et al., No. 13-cv-04166-P (N.D. TX May 19, 2015 Dismissal for USCIS I-140 Revocation
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AJI PAUL EASWARANKUDYIL, and
MARK J. HAZUDA, et al.,
CIVILACTION NO. 3:13-cv-4166-P
Now before the Court are three Motions. Plaintiffs filed their First Motion for Leave to
File Amended Complaint (“Motion to Amend”) on December 18, 2013. Doc. 8. On December
20, 2013, Defendants filed their Motion to Dismiss Complaint for Lack of Jurisdiction (“Motion
to Dismiss”). Doc. 9. Plaintiffs filed their Response to the Motion to Dismiss on January 10,
2014. Doc. 11. Defendants filed their Reply to the Motion to Dismiss on January 24, 2014.
Doc. 12. On May 13, 2014, Plaintiffs filed their Motion for Temporary Restraining Order and
Preliminary Injunction. Docs. 13-14. After reviewing the briefing, the evidence, and the
applicable law, the Court GRANTS Defendants’ Motion to Dismiss, DENIES Plaintiffs’ Motion
to Amend, and DENIES Plaintiffs’ Motion for Temporary Restraining Order and Preliminary
This case involves the denial of immigration benefits. On March 2, 2004, Pacific West
Corporation (“Pacific West”) filed a labor certification on behalf of Plaintiff Aji Paul
Easwarankudyil (“Easwarankudyil”), an Indian citizen. Doc. 1 at 4, 6. At the time of the
application, Easwarankudyil was in valid H-1B status. Doc. 1 at 6. On April 13, 2006, Pacific
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West filed an I-140 petition on behalf of Easwarankudyil, which was approved on August 2,
2006. Doc. 1 at 6. On June 25, 2007, Easwarankudyil and his wife, Plaintiff Ninu Kurian
(“Kurian”), filed I-485 petitions with the United States Citizenship and Immigration Service
(“USCIS”) seeking to adjust their statuses from nonimmigrants to lawful permanent residents.
Doc. 1 at 6. On March 18, 2009, while his adjustment application was still pending,
Easwarankudyil notified USCIS of a change in employer. Doc. 1 at 6.
On December 20, 2012, USCIS issued a Notice of Intent to Revoke (“NOIR”) the I-140
petition. The NOIR stated that, based on an investigation and subsequent conviction of Pacific
West for making false statements, filings involving Pacific West “may be considered fraudulent
and the job offered to the beneficiary may not have been a bona fide or realistic job offer.” Doc.
1 at 6-7. On January 13, 2013, Easwarankudyil responded to the NOIR, requesting that USCIS
provide the derogatory information on which the NOIR was based and alleging that he was
entitled to such information pursuant to 8 C.F.R. § 103.2. Doc. 1 at 7. On May 16, 2013,
Easwarankudyil’s labor certification was invalidated and the I-140 petition was revoked. Doc. 1
at 7. A motion to reconsider was denied on July 12, 2013. Doc. 1 at 8. On August 20, 2013,
USCIS denied Easwarankudyil’s and Kurian’s petitions for adjustment of status. Doc. 1 at 8.
On October 15, 2013, Easwarankudyil and Kurian filed suit, seeking a declaration that USCIS
improperly invalidated Easwarankudyil’s labor certification and denied Plaintiffs’ petitions for
adjustment of status. Doc. 1.
Plaintiffs now seek to amend their Complaint to include additional action on their
immigration cases and request a Temporary Restraining Order (“TRO”) and a preliminary
injunction tolling their accrual of unlawful presence as of the date of the filing of their
Complaint. Docs. 8, 14. Defendants move to dismiss Plaintiffs’ Complaint. Doc. 9.
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II. Motion to Dismiss
Defendants move to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Doc. 9. Rule 12(b)(1) motions challenge a federal court’s subject matter
jurisdiction. Federal courts are courts of limited jurisdiction, and, without jurisdiction conferred
by the Constitution or statute, they lack the power to adjudicate claims. Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). When challenging a court’s subject matter
jurisdiction under Rule 12(b)(1), a party can make either a facial or factual attack. See, e.g.,
Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981); Hunter v. Branch Banking & Trust
Co., No. 3:12-cv-2437-D, 2013 WL 607151, at *2 (N.D. Tex. Feb. 19, 2013). “If the party
merely files its Rule 12(b)(1) motion, it is considered a facial attack, and the court looks only at
the sufficiency of the allegations in the pleading and assumes them to be true. If the allegations
are sufficient to allege jurisdiction, the court must deny the motion.” Hunter, 2013 WL 607151,
at *2 (citing Paterson, 644 F.2d at 523).
Defendants argue that the Court should dismiss the Complaint pursuant to Rule 12(b)(1)
because (1) Plaintiffs lack standing to contest the revocation of the I-140; (2) the Court lacks
jurisdiction to review the revocation of the I-140; and (3) the Court lacks jurisdiction to review
the denial of I-485s. Doc. 9. The Court addresses each in turn.
A. Revocation of I-140
Defendants argues that a ruling relating to the revocation of the I-140 would be improper
because (1) Plaintiffs lack standing to contest the revocation and (2) the Court lacks jurisdiction
to review the revocation. Doc. 9 at 7-8. Pursuant to the Immigration and Nationality Act
(“INA”), “[t]he Secretary of Homeland Security may, at any time, for what he deems to be good
Although Defendants also state that they move to dismiss pursuant to Rule 12(b)(6), the basis for their Rule
12(b)(6) motion is identical to their Rule 12(b)(1) motion. See Doc. 12 at 7. Because the Court grants Defendants’
Motion to Dismiss pursuant to Rule 12(b)(1), it does not address the Rule 12(b)(6) grounds.
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and sufficient cause, revoke the approval of any petition approved by him under section 1154 of
[the INA].” 8 U.S.C. § 1155. Section 1154(a)(1)(F) provides for petitions filed by employers
intending to employ aliens entitled to classification under § 1153(b), which includes I-140
petitions. See 8 U.S.C. §§ 1153(b), 1154(a)(1)(F); see also 8 C.F.R. § 204.5(a). Section
1252(a)(2)(B)(ii) provides that no court shall have the jurisdiction to review:
any ... decision or action of the Attorney General or the Secretary of Homeland
Security the authority for which is specified under this subchapter to be in the
discretion of the Attorney General or the Secretary of Homeland Security, other
than the granting of relief under section 1158(a).
8 U.S.C. 1252(a)(2)(B)(ii) (emphasis added). The Fifth Circuit has held that decisions made
pursuant to § 1155 are discretionary decisions within the meaning of § 1252(a)(2)(B)(ii) and are
therefore non-reviewable. Ghanem v. Upchurch, 481 F.3d 222, 224-25 (5th Cir. 2007). As
Plaintiffs concede, this Court is bound by Fifth Circuit precedent. See Doc. 11 at 10. However,
Plaintiffs also assert that their challenge to the revocation falls outside the bounds of §
1252(a)(2)(B)(ii) and is instead governed by §1252(a)(2)(D). Doc. 12 at 11-12. Section
1252(a)(2)(D) provides that:
[n]othing in subparagraph (B) or (C), or in any other provision of this chapter
(other than this section) which limits or eliminates judicial review, shall be
construed as precluding review of constitutional claims or questions of law raised
upon a petition for review filed with an appropriate court of appeals in
accordance with this section.
8 U.S.C. § 1252(a)(2)(D) (emphasis added).
Plaintiffs argue that, pursuant to its own regulations, USCIS was required to allow
Easwarankudyil to inspect the derogatory information on which the revocation of the I-140 was
based and to rebut the information. Doc. 11 at 10-11; see also 8 C.F.R. § 103.2(b)(16). Section
103.2(b)(16) of the Regulations provides that, with a few exceptions, “[a]n applicant or petitioner
shall be permitted to inspect the record of proceeding which constitutes the basis for the
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decision.” 8 C.F.R. § 103.2(b)(16). Defendants contend that § 103.2(b)(16) does not give
Easwarankudyil, as a beneficiary rather than an applicant or petition, the right to inspect
derogatory information. Doc. 12 at 6. Even assuming that § 103.2(b)(16) applied to
Easwarankudyil, this Court is not the proper place to raise a review of constitutional claims or
questions of law. Rather, § 1252(a)(2)(D) provides that constitutional claims or questions of law
may be reviewed upon a “petition for review filed with an appropriate court of appeals.” 2
U.S.C. § 1252(a)(2)(D) (emphasis added); see also, e.g., Ajlani v. Chertoff, 545 F.3d 229, 236
(2d Cir. 2008) (“While the statute creates an exception for “constitutional claims or questions of
law,” see  § 1252(a)(2)(D), jurisdiction to review such claims is vested exclusively in the courts
of appeals . . . .”); Kareva v. United States, No. 1:12-cv-267, 2014 WL 1276157, at *4 n.1 (S.D.
Ohio Mar. 27, 2014) (“The Court notes that 8 U.S.C. § 1252(a)(2)(D) permits judicial review of
certain constitutional claims. However, Plaintiff has not raised any constitutional challenges and
section 1252(a)(2)(D) vests jurisdiction in the courts of appeals.”); Nwauwa v. Holder, No. 12-C-
2925, 2013 WL 842665, at *4 (N.D. Ill. Mar. 6, 2013) (“Although 8 U.S.C. § 1252(a)(2)(D) does
allow judicial review of constitutional claims and questions of law raised upon a petition for
review, which are alleged by plaintiff in her second count, the statute explicitly confers such
jurisdiction on the ‘appropriate court of appeals.’ 8 U.S.C. § 1252(a)(2)(D). Therefore, even if
plaintiff is entitled to petition for judicial review of her constitutional and legal claims, the
appropriate forum is the court of appeals.”); Huerta v. Clinton, Civ. A. No. H-09-3229, 2010 WL
565279, at *3 (S.D. Tex. Feb 17, 2010) (“Section 1252 does not vest a federal district court with
jurisdiction to review [questions of law].”); but see Crooks v. Holder, No. 4:12-cv-00343-CLS-
MHH, 2013 WL 5524135, at *5 (N.D. Ala. Sept. 30, 2013) (citing § 1252(a)(2)(D) for its
In a brief sentence in their Response, Plaintiffs state that their Complaint asserts a due process claim. Doc. 11 at
12. While it is unclear if this is the case, the Court lacks jurisdiction over any such claim for the same reasons it
lacks jurisdiction to review any other question of law or constitutional claim.
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jurisdiction over a question of law). Therefore, because the Court lacks jurisdiction to review
discretionary decisions, questions of law, and constitutional claims, the Court concludes that it
lacks jurisdiction to review the revocation of the I-140 petition. Because the Court finds that it
lacks jurisdiction on this basis, it does not address whether Plaintiffs have standing to contest the
B. Denial of I-485s
Defendants also argue that the Court lacks jurisdiction to review the denial of Plaintiffs’
I-485 petitions. Doc. 9 at 8-9. As with discretionary decisions regarding I-140 petitions, the
Fifth Circuit has found that discretionary decisions of I-485 petitions are non-reviewable.
Ayanbadejo v. Chertoff, 517 F.3d 273, 276-77 (5th Cir. 2008). However, Plaintiffs assert that the
denial was based on an incorrect legal interpretation of the American Competitiveness in the
Twenty-First Century Act of 2000, and, therefore, as a question of law, the Court has jurisdiction
to review its claims pursuant to § 1252(a)(2)(D). See Doc. 11 at 13-14; see also 8 U.S.C. §
1154(j). However, as stated, § 1252(a)(2)(D) vests jurisdiction to review questions of law in the
courts of appeal. Therefore, the Court concludes that it lacks jurisdiction to review the denial of
Plaintiffs’ I-485 petitions. Thus, the Court GRANTS Defendants’ Motion to Dismiss pursuant to
Rule 12(b)(1); dismissal is without prejudice.
III. Motion to Amend
Plaintiffs seek leave to amend to add new procedural history relating to the denial of their
petitions for adjustment of status. Doc. 8. The Court freely grants leave to amend when justice
so requires. See Fed. R. Civ. P. 15(a)(2) (stating a court should freely grant leave to amend);
Forman v. Davis, 371 U.S. 178, 182 (1962) (holding leave to amend should be freely granted
absent a showing of undue delay, bad faith, undue prejudice, or futility). “Whether leave to
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amend should be granted is entrusted to the sound discretion of the district court.” Quintanilla v.
Tex. Television, Inc., 139 F.3d 494, 499 (5th Cir. 1998). A court should consider factors such as:
(1) undue delay; (2) bad faith or dilatory motive; (3) repeated failure to cure deficiencies by
previous amendments; (4) undue prejudice to the opposing party; and (5) futility of the
amendment. Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004) (citing Rosenzweig v.
Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003)). Absent one of those factors, the Court should
grant leave to amend. Id.
Here, Plaintiffs seek to include newly issued USCIS decisions denying Plaintiff’s I-485
petitions; these decisions were issued after the filing of the suit. Doc. 8. The amendment does
not provide a new basis for jurisdiction. Therefore, the Court DENIES Plaintiffs’ Motion to
IV. Temporary Restraining Order
Plaintiffs also request equitable relief in the form of a TRO and a preliminary injunction.
Docs. 13-14. However, as the Court has determined it does not have jurisdiction over this case,
such equitable relief is unavailable. Therefore, the Court DENIES Plaintiffs’ Motion for
Temporary Restraining Order and Preliminary Injunction.
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For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss, DENIES
Plaintiffs’ Motion to Amend, and DENIES Plaintiff’s Motion for Temporary Restraining Order
and Preliminary Injunction.
IT IS SO ORDERED.
Signed this 19th
day of May, 2014.
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