Mohammad v. Napolitano ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
KHALID SAID MOHAMMAD, )
)
Plaintiff, )
) Civil Action No. 09-1783(EGS)
v. )
)
JANET NAPOLITANO, )
Secretary U.S. Department )
of Homeland Security, et al. )
)
Defendants. )
)
MEMORANDUM OPINION
This case arises from the revocation of plaintiff Dr. Khalid
Said Mohammad’s approved Form I-140 Immigration Petition (“I-140
Petition”) by the United States Citizenship and Immigration
Services (“USCIS”). Pursuant to Section 10b of the
Administrative Procedure Act (“APA”), 5 U.S.C. § 702 and 28
U.S.C. § 1331, plaintiff is seeking a determination that the
revocation of his approved I-140 Petition was arbitrary and
capricious. Pending before the Court is plaintiff’s motion for
summary judgment and defendants’ motion to dismiss, or in the
alternative, for summary judgment. Upon consideration of the
motions, the responses and replies thereto, the applicable law,
and the parties’ arguments at the December 16, 2009 motions
hearing, the Court concludes that it lacks subject matter
jurisdiction over this action. Accordingly, the Court GRANTS
defendants’ motion to dismiss for lack of subject matter
jurisdiction and DENIES AS MOOT plaintiff’s motion for summary
judgment.
I. BACKGROUND
Plaintiff is a native and citizen of Egypt, who has lived in
the United States since November 1992. Am. Compl. ¶ 19; Pl.’s
Statement of Material Facts (“Pl.’s SMF”) ¶¶ 1-2. Plaintiff is a
medical researcher with a doctorate in Bone Biology and
Regeneration; his research focuses primarily on cancer of the
bone. Am. Compl. ¶ 19; Pl.’s SMF ¶¶ 1-2. For the last nine
years, plaintiff has worked in the Departments of Endocrinology
at the University of Texas and the University of Virginia School
of Medicine. Am. Compl. ¶¶ 21-22; Pl.’s SMF ¶¶ 3-4. Plaintiff
recently began medical research activities at the Indiana
University School of Medicine, Division of Endocrinology and
Metabolism. Am. Compl. ¶ 19; Pl.’s SMF ¶ 1.1
1
A letter from the Indiana University School of Medicine
explains that “Dr. Khalid Mohammad was recruited by Indiana
University School of Medicine together with other prominent
researchers to start a bone cancer metastasis research group.”
See Ex. Letter attached to Pl.’s Mot. The letter indicates that
Dr. Mohammad is responsible for directing the animal research
experiments for the research group. The letter also discusses
the University’s significant concerns regarding the revocation of
plaintiff’s I-140 petition; the University states that “[i]f we
cannot continue to employ Dr. Mohammad, the Indiana University
School of Medicine will suffer a massive loss of personnel as
well as scientific thinking, which will likely collapse our
program since 70% of the research is based on animal experiments
which Dr. Mohammad was hired to conduct. The potential loss to
the University in monetary terms could reach millions of dollars,
as the State of Indiana has invested in our program to promote
bone metastasis research.” Unfortunately, plaintiff did not
2
On April 6, 2009, in anticipation of his employment with
Indiana University School of Medicine, plaintiff filed an I-140
Petition under the EB-2 “Exceptional Ability” category, with
request for a National Interest Waiver of the labor certification
requirement, pursuant to INA § 203(b)(2)(B) and 8 C.F.R. §
204.5(k). Pl.’s SMF ¶ 10. Plaintiff’s I-140 Petition was
approved by the USCIS on April 17, 2009. Am. Compl. ¶ 28; Pl.’s
SMF ¶ 10; see also Pl.’s Ex. 2.
Shortly thereafter, however, on May 11, 2009, USCIS issued a
Notice of Intent to Revoke informing plaintiff that “[a]fter a
second review of [the] petition it appears that the beneficiary
does not meet the requirement of an alien applying for a National
Interest Waiver.” Am. Compl. ¶ 29; Pl.’s SMF ¶ 11 (quoting Pl.’s
Ex. 3).2 The Notice of Intent to Revoke explained, among other
things, that the agency intended to revoke plaintiff’s approved
submit this important piece of evidence with the I-140 petition
that is the subject of this litigation. The Court has been
informed, however, that the University’s letter was included in
plaintiff’s most recent I-140 petition, which is still pending.
See infra n.3.
2
To be eligible for a National Interest Waiver, the
petitioner must provide evidence that “persuasively demonstrates”
that: (i) the alien’s work is of “substantial intrinsic merit;
(ii) the benefit to be imparted by the alien’s work “will be
national in scope”; and (iii) the alien possesses “demonstrable
prior achievements proving that he/she will serve the national
interest to a substantially greater degree than would an
available United States worker having the same minimum
qualifications.” See Pl.’s Ex. 5 (discussing the three-part
test).
3
I-140 Petition because it found “insufficient evidence to
demonstrate that the proposed employment of the alien would
specifically benefit the national interest of the United States
to substantially greater degree than a similarly qualified U.S.
worker.” Pl.’s Ex. 3; see also Pl.’s Ex. 3 (“The petitioner has
not shown that the waiver of the required job offer and labor
certification would be in the national interest.”). In response,
plaintiff’s counsel submitted a rebuttal letter as well as an
additional expert letter in support of plaintiff’s petition. Am.
Compl. ¶ 29; Pl.’s SMF ¶ 12; see also Pl.’s Ex. 4. Despite these
additional submissions, on August 7, 2009, the USCIS issued a
Notice of Revocation of Immigrant Petition (“Notice of
Revocation”) to plaintiff. Am. Compl. ¶ 31; Pl.’s SMF ¶ 13.
The Notice of Revocation informed plaintiff that his I-140
Petition had been revoked because he failed to carry his
“required burden of proof” in establishing his eligibility for a
National Interest Waiver. See Def.’s Ex. 5. Specifically, the
Notice of Revocation explained that:
[T]he [Notice of Intent to Revoke] response failed to
establish the alien [National Interest Waiver]
petitioner’s work has been so widely cited by other
experts in the field of cancer research on a national
scale, and did not established [sic] that his work
significantly impacted others in the field of cancer
research. The evidence provided does not establish
that the alien [National Interest Waiver] petitioner’s
past record justifies projections of future benefit to
the national interest to outweigh the protection given
to United States workers by the labor certificate
process.
4
Def.’s Ex. 5. The Notice also advised plaintiff of his right to
appeal the decision to the Administrative Appeals Office of the
USCIS within fifteen days. See Def.’s Ex. 5.
Plaintiff initially filed, and then withdrew, an
administrative appeal.3 On September 21, 2009, Dr. Mohammad
filed an action in this Court seeking a preliminary injunction.
At a status conference held on September 24, 2009, plaintiff
agreed to consolidate his motion for preliminary injunction with
a determination on the merits pursuant to Federal Rule of Civil
Procedure 65(a)(2). See Minute Order dated September 24, 2009;
see also Fed. R. Civ. P. 65(a)(2) (“Before or after beginning the
hearing on a motion for a preliminary injunction, the court may
advance the trial on the merits and consolidate it with the
hearing.”). Plaintiff subsequently filed a motion for summary
judgment and defendants filed a motion to dismiss or, in the
alternative, for summary judgment. These motions are now ripe
for determination by the Court.
II. LEGAL STANDARD
A motion to dismiss under Rule 12(b)(1) of the Federal Rules
of Civil Procedure tests whether the court has subject matter
jurisdiction over the action. Zaigang Liu v. Novak, 509 F. Supp.
3
In addition, prior to filing this action, plaintiff filed an
I-140 Petition under the EB-1 “Extraordinary Ability” category.
The Court was advised at the December 16, 2009 motions hearing
that the petition was still pending, and should be decided
shortly.
5
2d 1, 3 (D.D.C. 2007). The plaintiff bears the burden of
establishing that the court has subject matter jurisdiction.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In
evaluating a motion to dismiss for lack of subject matter
jurisdiction, the court accepts the complaint’s well-pled factual
allegations as true and construes all reasonable inferences in
the plaintiff’s favor. Thompson v. Capitol Police Bd., 120 F.
Supp. 2d 78, 81 (D.D.C. 2000). Because subject-matter
jurisdiction focuses on the court’s power to hear the claim,
however, the court must give the plaintiff’s factual allegations
closer scrutiny when resolving a Rule 12(b)(1) motion than would
be required for a Rule 12(b)(6) motion for failure to state a
claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir.
2003). To determine whether it has jurisdiction, the court may
consider materials outside the pleadings. Alliance for Democracy
v. Fed. Election Comm’n, 362 F. Supp. 2d 138, 142 (D.D.C. 2005).
A motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). A complaint must present “enough facts to
state a claim to relief that is plausible on its face” and “above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). In considering a 12(b)(6) motion, the Court
must construe the complaint “‘liberally in the plaintiff’s
favor,’ ‘accept[ing] as true all of the factual allegations’”
6
alleged in the complaint. Aktieselskabet AF 21 November 2001 v.
Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008) (alteration in
original) (quoting Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 253
(D.C. Cir. 2008)). Plaintiffs are entitled to “the benefit of
all inferences that can be derived from the facts alleged.”
Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
Summary judgment should be granted only if the moving party
has shown that there are no genuine issues of material fact and
that the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986); Waterhouse v. District of Columbia, 298 F. 3d 989,
991 (D.C. Cir. 2002). A fact is genuine “‘if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.’” Steele v. Schafer, 535 F. 3d 689, 692 (D.C.
Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). Facts are material if they “‘might affect the
outcome of the suit under the governing law.’” Id. (quoting
Anderson, 477 U.S. at 248). The party seeking summary judgment
bears the initial burden of demonstrating an absence of genuine
issues of material fact. Celotex, 477 U.S. at 322. In
determining whether a genuine issue of material facts exists, the
Court must view all facts in the light most favorable to the non-
moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 597 (1986); Keyes v. District of Columbia,
7
372 F. 3d 434, 436 (D.C. Cir. 2004). “When a motion for summary
judgment is properly made and supported, an opposing party may
not rely merely on allegations or denials in its own pleading;
rather, its response must . . . set out specific facts showing a
genuine issue for trial.” Fed. R. Civ. P. 56(e)(2); see also
Celotex, 477 U.S. at 324.
III. ANALYSIS
Defendants argue that Congress stripped this Court of
jurisdiction to hear plaintiff’s action. Specifically,
defendants point to 8 U.S.C. § 1252(a)(2)(B), which states, in
relevant part, that “no court shall have jurisdiction to review -
. . . (ii) any . . . decision or action of the Attorney General
or the Secretary of Homeland Security the authority for which is
specified under this title to be in the discretion of the
Attorney General or the Secretary of Homeland Security . . . .”
Accordingly, § 1252(a)(2)(B)(ii) prevents this Court from
reviewing discretionary decisions made by the Attorney General or
the Secretary of Homeland Security (“Attorney General” or
“Secretary”). The threshold issue this Court must resolve,
therefore, is whether the Secretary of Homeland Security’s
decision to revoke an immigration petition is discretionary,
thereby depriving this Court of jurisdiction to review the
decision.
8
The statutory provision governing the revocation of
immigration petitions is 8 U.S.C. § 1155. Section 1155 states:
“The Secretary of Homeland Security may, at any time, for what he
deems to be good and sufficient cause, revoke the approval of any
petition approved by him under [section 1154].”
Although the D.C. Circuit has not yet decided whether § 1155
is a discretion-vesting statute that deprives this Court of
subject matter jurisdiction, six other circuits have addressed
the issue and split. Specifically, the Third, Fifth, Seventh,
Eighth and Eleventh Circuits have held that courts lack
jurisdiction to review the revocation of immigration petitions,
while the Ninth Circuit has held that jurisdiction exists.
Compare Sands v. U.S. Dep’t of Homeland Security, 308 Fed. Appx.
418 (11th Cir. 2009); Abdelwahab v. Frazier, 578 F.3d 817 (8th
Cir. 2009); Ghanem v. Upchurch, 481 F.3d 222 (5th Cir. 2007);
Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196 (3d Cir. 2006);
El-Khader v. Monica, 366 F.3d 562 (7th Cir. 2004), with Herrera
v. U.S. Citizenship & Immigration Servs., 571 F.3d 881 (9th Cir.
2009); Love Korean Church v. Chertoff, 549 F.3d 749 (9th Cir.
2008); Ana Int’l, Inc. v. Way, 393 F.3d 886 (9th Cir. 2004). The
only district court in this Circuit to address the issue
concluded that subject matter jurisdiction was lacking. See
Systronics Corp. v. Immigration and Naturalization Serv., 153 F.
Supp. 2d 7, 12 (D.D.C. 2001) (Lamberth, J.).
9
Those courts that have concluded that the revocation of an
immigration petition is a discretionary decision – and thus
beyond the jurisdiction of federal courts – have focused on the
plain language of § 1155. Specifically, these courts have
determined that Congress’s use of the terms “may,”4 “at any
time,”5 and “for what [the Secretary of Homeland Security]
deems”6 infers discretion. See, e.g., Abdelwahab, 578 F.3d at
821 (“[f]ocusing on the plain language of § 1155” and concluding
that § 1155 revocations are specified by statute to be in the
discretion of the Secretary within the meaning of
§ 1252(a)(2)(B)(ii)); El-Khader, 366 F.3d at 567 (“[I]n our
opinion, the discretionary nature of the decision is apparent
from the plain language of the statute.”); see also Systronics
4
See, e.g., Jilin Pharm., 447 F.3d at 203 (explaining that
“may” is language that is “indicative of administrative
discretion for purposes of § 1252(a)(2)(B)(ii)); El-Khader, 366
F.3d at 567 (discussing Congress’s use of “the permissive
‘may’”); see also Zhu v. Gonzales, 411 F.3d 292, 296 (D.C. Cir.
2005) (“[T]he ‘usual presumption’ is that ‘‘may’ confers
discretion.’” (quoting Int’l Union, United Auto v. Dole, 919 F.2d
753, 756 (D.C. Cir. 1990))).
5
See, e.g., Jilin Pharm., 447 F.3d at 203 (explaining that
the discretion to revoke “at any time” had once been restricted
by a “now-defunct notice requirement,” and concluding that
“Congress’s elimination of this requirement strongly indicates an
intent to strengthen the discretion of the Secretary of Homeland
Security to revoke approval of petitions”).
6
See, e.g., Ghanem, 481 F.3d at 224 (“The word ‘deem’ has
been defined as follows: ‘to sit in judgment upon.’ We interpret
the phrase ‘for what he deems’ as vesting complete discretion in
the Secretary to determine what constitutes good and sufficient
cause.” (quoting Webster’s New Int’l Dictionary 589 (3d ed.
1981))).
10
Corp., 153 F. Supp. 2d at 12 (“The language is clear and
unambiguous; the Attorney General has discretion to revoke a
petition at any time.”).
Plaintiff argues, however, that Congress’s use of this
discretion-conveying language is insufficient to strip the Court
of jurisdiction because “[t]he statutory provision authorizing
revocation of an approved petition nowhere specifies that the
agency’s decision to revoke is ‘in the discretion’ of the
Secretary of Homeland Security.” Pl.’s Br. at 16.7 Yet, such a
literal reading is not countenanced in this Circuit. The D.C.
Circuit has explained that “a decision may be ‘specified . . . to
7
In addition, citing Liu v. Novak, 509 F. Supp. 2d 1 (D.D.C.
2007), plaintiff asks this Court to “reaffirm its recent
conclusion that § [1252](a)(2)(B)(ii) bars review only of
determinations that the INA specifies as being discretionary.”
Pl.’s Br. at 16-17. Plaintiff appears, however, to have misread
the Court’s decision in Liu. In Liu, the plaintiff was
challenging the failure of the USCIS to adjudicate his
immigration petition. 509 F.2d at 2. The Court held that
§ 1252(a)(2)(B)(ii) did not strip the Court of jurisdiction to
hear the action because the plaintiff challenged only USCIS’s
failure to render a decision - not the decision itself. See id.
at 6 (“[Section [1252](a)(2)(B)(ii)] only applies to jurisdiction
to review a ‘decision or action’ of the Department of Homeland
Security. In this case, plaintiff is challenging the absence of
a decision or action . . . . Review over the lack of action is
not barred.”). Indeed, the Court recognized that it lacked
jurisdiction to review an adjustment decision by the USCIS
because “it is clear that the decision to grant or deny an
adjustment application is ‘wholly discretionary,’ and therefore
barred from judicial review”. Id. at 5 (internal citation
omitted). In this case, unlike Liu, plaintiff is challenging a
final revocation decision that is specified to be within the
discretion of the Secretary under § 1155. Liu, therefore, is
inapposite.
11
be in the discretion of the Attorney General’ even if the grant
of authority to make that decision does not use the word
‘discretion.’” Zhu, 411 F.3d at 294-95 (affirming the district
court’s determination that it lacked subject matter jurisdiction
to review decisions by the USCIS regarding the denial of National
Interest Waivers). While it would undoubtedly simplify matters
if Congress used the word “discretion” each time that it intended
to specify that a decision or action was in the discretion of the
Attorney General, there simply is no such requirement. See id.
at 295 (“[W]e think it unlikely the Congress intended that,
regardless of context, no grant of authority to the Attorney
General be deemed discretionary unless it uses the word
‘discretion.’”); see also Ana Int’l, 393 F.3d at 898 (Tallman,
J., dissenting) (“Congress does not use the same formulaic
language each time it grants discretion to the Attorney General.
. . . [W]e should not require our lawmakers to recite the words
‘sole and unreviewable discretion’ as some sort of talismanic
incantation before we can conclude that a statute means what it
says.”). Instead, to discern Congress’s intent, this Court must
interpret the language of § 1155 in a manner that “give[s] effect
. . . to every clause and word of [the] statute.” Zhu, 411 F.3d
at 295 (internal quotation marks omitted).
Having closely reviewed the plain language of § 1155, the
Court concludes that by using the terms “may,” “at any time,” and
12
“deems,” Congress specified that the authority to make revocation
decisions was within the discretion of defendants, and therefore
outside the scope of this Court’s review. See 8 U.S.C. §
1252(a)(2)(B).
The Court is aware that the Ninth Circuit has concluded that
the “good and sufficient cause” language in § 1155 “constitutes a
legal standard the meaning of which [courts] retain jurisdiction
to clarify.” See Ana Int’l Inc., 393 F.3d at 893-94 (explaining
that Ninth Circuit precedent “makes it clear that the authority
of the Attorney General to revoke visa petitions is bounded by
objective criteria” because “‘good and sufficient cause’ refers
to a meaningful standard that the Attorney General may ‘deem’
applicable or inapplicable in a particular case, which he does
not manufacture anew in every new instance”). This Court,
however, simply cannot agree. Indeed, the Court finds the
dissenting opinion in Ana International much more persuasive:
The statute does not say that the Attorney General
may revoke a previously granted visa petition for
“good and sufficient cause.” If it did, I might be
inclined to agree with the court’s reading.
[Instead], the court fails to consider and give
effect to the words directly adjacent to that
phrase, which provide that the Attorney General
“may” revoke a visa petition “at any time” for “what
he deems to be good and sufficient cause[.]” I
simply cannot agree that this language limits the
Attorney General’s discretion and gives judges the
right to substitute their own notions of what
evidence is “good and sufficient” to permit the
Attorney General to act as he thinks best. Instead,
§ 1155 provides that the Attorney General gets to
13
decide whether and when to act for whatever reasons
he alone believes are good and sufficient.
Id. at 898 (Tallman, J., dissenting); see, e.g., Ghanem, 481 F.3d
at 224 (concluding that the plain language of the statute
“vest[s] complete discretion in the Secretary,” and noting that
“[t]o suggest otherwise and create a judicial standard or
‘clarification’ for good and sufficient cause would replace the
Secretary’s judgment with judicial oversight clearly not
contemplated by the statute”); Systronics Corp., 153 F. Supp. 2d
at 10 (“The determination of ‘good and sufficient cause’ is
committed to the discretion of the Attorney General because it
lacks precise factual standards for this Court to review.
Therefore, this Court lacks subject matter jurisdiction to decide
the merits of this case . . . .”).8
8
See also Jilin Pharm., 447 F.3d at 204-05 (“‘[F]or what [the
Secretary] deems to be good and sufficient cause’ is arguably so
subjective as to provide no meaningful legal standard. . . .
[T]his provision, taken literally, would require courts to test
whether the Secretary genuinely deemed the proffered cause to be
‘good and sufficient.’ It is absurd to think that Congress
intended the courts to conduct such an invasive inquiry into the
Secretary’s subjective thought process at the time of revocation.
Where there is no meaningful standard for review of an
administrative decision within a statute’s text, the decision is
not subject to judicial review.” (internal citations omitted));
El-Khader, 366 F.3d at 567 (“[T]he determination of whether there
exists ‘good and sufficient cause’ to revoke a petition approved
under § 1154 (including visa petitions) necessarily is highly
subjective, and there exist no strict standards for making this
determination.”).
14
IV. CONCLUSION
In sum, following the lead of the Third, Fifth, Seventh,
Eighth and Eleventh Circuits, this Court concludes that
§ 1252(a)(2)(B)(ii) strips the Court of jurisdiction to entertain
plaintiff’s complaint. While this Court is sympathetic to
plaintiff’s position, and indeed, finds plaintiff’s evidence
quite persuasive, the Court is without authority to review
defendants’ decision to revoke plaintiff’s I-140 petition.
Accordingly, defendant’s motion to dismiss is GRANTED and
plaintiff’s motion for summary judgment is DENIED AS MOOT. An
appropriate Order accompanies this Memorandum Opinion.
SIGNED: Emmet G. Sullivan
United States District Court Judge
December 18, 2009
15