Leonard Avullija v. Director, Citizenship and Immigration Services

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13452
Non-Argument Calendar
____________________
LEONARD AVULLIJA,
ALBANA AVULLIJA,
Plaintiffs-Appellants,
versus
DIRECTOR, CITIZENSHIP AND IMMIGRATION SERVICES,
SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
Defendants-Appellees,
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cv-01356-MMH-JBT
____________________
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2 Opinion of the Court 21-13452
Before JORDAN, NEWSOM, and BRASHER, Circuit Judges.
PER CURIAM:
Leonard and Albana Avullija appeal the dismissal of their
complaint against the United States Citizens and Immigration Ser-
vices under the Administrative Procedure Act, 5 U.S.C. §§ 706(1),
(2)(A). The Avullijas argue that the district court erred by conclud-
ing that it lacked subject-matter jurisdiction and by ruling that they
failed to state a claim for relief. After careful consideration, we hold
that the district court erred in concluding that it lacked jurisdiction
to consider the Avullijas’ claim. We nonetheless affirm the court’s
order dismissing the complaint because the Avullijas failed to state
a claim upon which relief can be granted.
I.
Albana Avullija, a United States citizen, sought an immi-
grant visa for her spouse, Leonard Avullija, a native and citizen of
Albania. On June 21, 2016, the United States Citizenship and Immi-
gration Services approved Albana’s petition to establish eligibility
for a spousal visa. The National Visa Center forwarded the ap-
proved petition to the United States Consulate in Tirana, Albania.
After interviewing Leonard, the consular office denied his applica-
tion based on two grounds of inadmissibility under the Immigra-
tion and Nationality Act, 8 U.S.C. § 1101 et seq. First, the consular
office found Leonard inadmissible under 8 U.S.C. § 1182(a)(4) be-
cause he was “likely at any time to become a public charge.”
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21-13452 Opinion of the Court 3
Second, the consular officer found Leonard inadmissible under 8
U.S.C. § 1182(a)(6)(C)(i), because he “by fraud or willfully misrep-
resenting a material fact” sought to procure admission to the
United States.
On or about November 25, 2019, Leonard applied for a
waiver under 8 U.S.C. § 1182(i), which permits the Attorney Gen-
eral, “in the discretion of the Attorney General,” to waive inadmis-
sibility under Section 1182(a)(6)(C) if “the refusal of admission to
the United States . . . would result in extreme hardship to the citizen
or lawfully resident spouse or parent of such an alien . . . .”
On July 2, 2020, USCIS denied the application, incorrectly
stating that Leonard was found inadmissible under 8 U.S.C. §
1182(a)(9)(B)(i)(II) as a noncitizen who had previously resided in
the United States unlawfully. However, the denial correctly stated
that Leonard was also inadmissible under Section 1182(a)(4) be-
cause he was likely to become a public charge, for which “there is
no waiver for inadmissibility.” Thus, USCIS denied the waiver ap-
plication because Leonard would remain inadmissible even if a
waiver was granted.
The Avullijas did not appeal the decision to the Administra-
tive Appeals Office or submit a motion to reopen or reconsider it.
Instead, they filed a complaint in federal district court seeking judi-
cial review of the agency’s decision under the Administrative Pro-
cedure Act, 5 U.S.C. §§ 706(1), (2)(A). The Avullijas argued that
USCIS had violated 8 C.F.R. § 103.3(a)(1), which requires the
agency to “explain . . . the specific reasons for a denial,” because the
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4 Opinion of the Court 21-13452
decision did not address the inadmissibility grounds under Section
1182(a)(6)(C)(i).
The government filed a motion to dismiss based on lack of
subject-matter jurisdiction and, alternatively, failure to state a
claim. The district court dismissed the complaint on both grounds,
and the Avullijas timely appealed.
II.
We review a district court’s grant of a motion to dismiss for
failure to state a claim de novo, “accepting the allegations in the
complaint as true and construing them in the light most favorable
to the plaintiff.” See Timson v. Sampson, 518 F.3d 870, 872 (11th
Cir. 2008). We also review the dismissal of a complaint for lack of
subject-matter jurisdiction de novo. Houston v. Marod Supermar-
kets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013).
III.
The Immigration and Nationality Act precludes judicial re-
view of waiver decisions under Section 1182(i) and under Sec-
tion 1182(a)(9)(B)(v). See 8 U.S.C. §§ 1252(a)(2)(B)(i). However, the
Act does not preclude judicial review of “allegations that an agency
failed to follow its own binding regulations.” Kurapati v. U.S. Bu-
reau of Citizenship & Immigr. Servs., 775 F.3d 1255, 1262 (11th Cir.
2014) (quotation marks omitted). Nonetheless, we have “scruti-
nized claims purportedly brought under exceptions to the jurisdic-
tional limitations of the INA that in fact seek substantive judicial
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21-13452 Opinion of the Court 5
review of agency decisions.” For example, in Arias v. U.S. Atty.
Gen., 482 F.3d 1281 (11th Cir. 2007), the Board of Immigration Ap-
peals dismissed the plaintiff’s appeal of the denial of his application
for waiver of inadmissibility under the Act and he petitioned for
review. There, we concluded that the petitioner had attempted to
circumvent the INA’s jurisdiction stripping provisions by charac-
terizing an abuse of discretion argument as a constitutional claim
and dismissed the appeal for lack of jurisdiction. Id. at 1283–84.
Here, the district court concluded that “[t]he allegations in
the Complaint signify an intent to obtain a ‘favorable adjudication,’
rather than USCIS’s compliance with regulations.” Specifically, the
court relied on the Avullijas’ stipulation that they could overcome
the public charge grounds for denial if the agency were to “vacate
its decision and reopen the administrative proceedings.” We disa-
gree with the district court that it lacked jurisdiction to consider the
Avullijas’ claim. Although the complaint raises the possibility of va-
catur of the waiver denial in full, it also argues that USCIS failed to
comply with 8 C.F.R. § 103.3(a)(1) when it issued the denial. Such
a claim—that an agency has acted in a manner inconsistent with its
own binding regulations—is within our jurisdiction to consider un-
der Kurapati, 775 F.3d at 1262.
Although the district court erred in determining that it
lacked jurisdiction, we nonetheless affirm its dismissal of the Avulli-
jas’ complaint for failure to state a claim under Rule 12(b)(6). Even
accepting the Avullijas’ allegations as true, USCIS did not violate
its own regulations by denying Leonard’s waiver application. In its
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denial, USCIS explained that Leonard was ineligible under Section
212(a)(4)(A) because he was likely to become a public charge,
which is a non-waivable ground for denial of an immigrant visa.
Thus, Leonard would remain inadmissible even if granted a waiver
on some other ground of inadmissibility, regardless of the particu-
lar other ground. As USCIS explained in its denial letter, “[i]f an
applicant would remain inadmissible even if a waiver is granted,
that remaining inadmissibility may itself support denial of the
waiver application as a matter of discretion.” Section 103.3(a)(1) re-
quires only that USCIS “explain . . . the specific reasons for a de-
nial.” 8 U.S.C. § 103.3(a)(1). The explanation USCIS proffered
here—denial based on futility in the face of a non-waivable public
charge determination—is exactly the type of “specific reason[]”
contemplated by the regulation. Accordingly, we affirm.
AFFIRMED.