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Order
3:13-cv-4166-P
Page 1 of 8
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
AJ...
Order
3:13-cv-4166-P
Page 2 of 8
West filed an I-140 petition on behalf of Easwarankudyil, which was approved on August 2,...
Order
3:13-cv-4166-P
Page 3 of 8
II. Motion to Dismiss
Defendants move to dismiss pursuant to Rule 12(b)(1) of the Federal...
Order
3:13-cv-4166-P
Page 4 of 8
and sufficient cause, revoke the approval of any petition approved by him under section 1...
Order
3:13-cv-4166-P
Page 5 of 8
decision.” 8 C.F.R. § 103.2(b)(16). Defendants contend that § 103.2(b)(16) does not give
...
Order
3:13-cv-4166-P
Page 6 of 8
jurisdiction over a question of law). Therefore, because the Court lacks jurisdiction to ...
Order
3:13-cv-4166-P
Page 7 of 8
amend should be granted is entrusted to the sound discretion of the district court.” Quin...
Order
3:13-cv-4166-P
Page 8 of 8
V. Conclusion
For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss, ...
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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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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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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

  1. 1. Order 3:13-cv-4166-P Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION AJI PAUL EASWARANKUDYIL, and NINU KURIAN, Plaintiffs, v. MARK J. HAZUDA, et al., Defendants. § § § § § § § § § § CIVILACTION NO. 3:13-cv-4166-P ORDER 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 Injunction. I. Background 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 Case 3:13-cv-04166-P Document 15 Filed 05/19/14 Page 1 of 8 PageID 268
  2. 2. Order 3:13-cv-4166-P Page 2 of 8 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. Case 3:13-cv-04166-P Document 15 Filed 05/19/14 Page 2 of 8 PageID 269
  3. 3. Order 3:13-cv-4166-P Page 3 of 8 II. Motion to Dismiss Defendants move to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.1 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 1 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. Case 3:13-cv-04166-P Document 15 Filed 05/19/14 Page 3 of 8 PageID 270
  4. 4. Order 3:13-cv-4166-P Page 4 of 8 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 Case 3:13-cv-04166-P Document 15 Filed 05/19/14 Page 4 of 8 PageID 271
  5. 5. Order 3:13-cv-4166-P Page 5 of 8 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 8 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 2 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. Case 3:13-cv-04166-P Document 15 Filed 05/19/14 Page 5 of 8 PageID 272
  6. 6. Order 3:13-cv-4166-P Page 6 of 8 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 revocation. 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 Case 3:13-cv-04166-P Document 15 Filed 05/19/14 Page 6 of 8 PageID 273
  7. 7. Order 3:13-cv-4166-P Page 7 of 8 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 Amend. 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. Case 3:13-cv-04166-P Document 15 Filed 05/19/14 Page 7 of 8 PageID 274
  8. 8. Order 3:13-cv-4166-P Page 8 of 8 V. Conclusion 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. Case 3:13-cv-04166-P Document 15 Filed 05/19/14 Page 8 of 8 PageID 275

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