Onyenanu v. Garland

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

OBINNA C. ONYENANU,

Plaintiff,

v. Case No: 8:23-cv-138-CEH-TGW

MERRICK B. GARLAND,

ALEJANDRO MAYORKAS, UR

MENDOZA JADDOU, NIEVES

CARDINALE, MARY E BRENNAN

SENG, UNITED STATES

CITIZENSHIP AND IMMIGRATION

SERVICES and DEPARTMENT OF

HOMELAND SECURITY,

Defendants.

___________________________________/

ORDER

This matter comes before the Court on the Federal Defendants’ Motion to

Dismiss (Doc. 11), filed pursuant to Fed. R. Civ. P. 12(b)(1). Plaintiff opposes the

motion (Doc. 12). In the motion, Defendants request dismissal of this action for lack

of subject-matter jurisdiction. The Court, having considered the motion and being

fully advised in the premises, will grant, in part, the Defendants’ motion, dismiss

Plaintiff’s Complaint, and allow Plaintiff leave to file an amended complaint.

I. BACKGROUND1

1 The following statement of facts is derived from the Complaint (Doc. 1), the allegations of

which the Court accepts as true in ruling on the instant Motion to Dismiss. See Lawrence v.

Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (In a facial attack on the court’s subject matter

Plaintiff, Obinna Onyenanu, is a citizen of Nigeria, residing in Pasco County,

Florida. Doc. 1 ¶ 14. He is a foreign national holding advanced professional degrees,

with both bachelor’s and master’s degrees in Business Administration. Id. ¶¶ 3, 4, 15.

Plaintiff has over 11 years of professional experience in the business management field

with a specialization in cybersecurity management. Id. ¶¶ 4, 15. On November 23,

2020, Plaintiff submitted a Form I-140 Immigration Petition for Alien Worker, based

on advanced degree and exceptional ability as a business development specialist. Id. ¶

31. Plaintiff’s business expertise is in cybersecurity, and he is currently the Assistant

Vice President in Regulatory & Corp. Rep, a division of Citi’s Enterprise O&T Global

Functions & Other Corporate for Citibank. Id. ¶ 32.

Plaintiff seeks a national interest waiver (“NIW”) as a self-petitioner in the

United States. Id. ¶ 3. The National Interest Waiver is a procedure to bypass the Labor

Certification process, as administered by the Department of Labor, and which is

typically a prerequisite to obtaining permanent residence through the EB-2

employment-based green card category. Id. ¶ 26. The USCIS (“United States

Citizenship and Immigration Services”) may waive the labor certification requirement

that a non-citizen’s services be sought by an employer in the United States if it

determines that such waiver is in the national interest. Id. ¶ 27. Plaintiff alleges that his

waiver is in the national interest because the United States needs experts like Plaintiff

who can provide cybersecurity management and design and develop strong and better

jurisdiction, a plaintiff “is afforded safeguards similar to those provided in opposing a Rule

12(b)(6) motion—the court must consider the allegations of the complaint to be true.”).

business systems to prevent attacks and protect the U.S. business in various industries,

such as finance, health, government, and national security. Id. ¶ 48.

On May 16, 2022, the USCIS requested additional evidence from Plaintiff

establishing that he is a professional holding an advanced degree in the business field,

that his proposed endeavor has substantial merit and national importance, that

Plaintiff is well positioned to advance the proposed endeavor, and that it would benefit

the United States to waive the requirements of having a job offer. Doc. 1 ¶ 35. On

August 23, 2022, Plaintiff responded to USCIS with additional supporting evidence,

including copies of his degrees, official academic transcripts, updated resume, and

letters of recommendation. Id. ¶ 38. In support of his contention that this is in the

national interest, Plaintiff submitted as additional evidence President Biden’s May 12,

2021 Executive Order on Improving the Nation’s Cybersecurity. Doc. 1-4 at 47–66.

On December 12, 2022, Plaintiff’s petition was denied by the USCIS. Id. ¶ 53;

Doc. 1-5. Plaintiff contends that the decision by USCIS to deny his Form I-140 Petition

was arbitrary, capricious, contrary to law and published agency guidance, was not

supported by substantial reasoning and evidence, and ignores or discounts

overwhelming evidence submitted by Plaintiff in support of his petition, which

amounts to an abuse of discretion. Doc. 1 ¶ 2. Plaintiff alleges that Defendant USCIS

did not follow its established policy guidance to officers. Id. ¶ 68. Plaintiff also alleges

that the USCIS’s decision “violates the governing statute and regulations.” Id. ¶ 69.

Plaintiff seeks review of the USCIS’s denial under the Administrative Procedure

Act. Plaintiff sues Merrick Garland, in his official capacity as the Attorney General

for the United States government; the Department of Homeland Security (“DHS”);

Alejandro Mayorkas in his official capacity as the Secretary of the DHS who is charged

with enforcement of the Immigration and Nationality Act (“INA”); USCIS, a

department within the DHS that is responsible for the administration and enforcement

of the INA; Ur Mendoza Jaddou in her official capacity as Director of the USCIS;

Mary Elizabeth Brennan Seng who is the Acting Director of the USCIS Texas Service

Center; and Nieves Cardinale, in her official capacity as Field Director for the USCIS

Tampa Field Office. Doc. 1.

Defendants move to dismiss the Complaint for lack of jurisdiction arguing that

Congress has provided USCIS with the discretion to adjudicate Plaintiff’s Form I-140

NIW and therefore its decision is barred from judicial review. Doc. 11. Plaintiff

responds in opposition arguing that he is not challenging the merits of a discretionary

immigration decision, but rather, challenging the nondiscretionary process leading up

to Defendants’ decision. Doc. 12.

II. LEGAL STANDARD

An action may be subject to dismissal if the court lacks subject matter

jurisdiction. Fed. R. Civ. P. 12(b)(1). Motions to dismiss under Rule 12(b)(1) may

assert either a facial or a factual attack on jurisdiction. Lawrence v. Dunbar, 919 F.2d

1525, 1529 (11th Cir. 1990); Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir.

2003) (stating same). “A facial attack on the complaint requires the court merely to

look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction,

and the allegations in his complaint are taken as true for the purposes of the motion.”

Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232–33 (11th

Cir. 2008). In assessing a motion to dismiss pursuant to Rule 12(b)(1) the Court affords

Plaintiff the same safeguards as those provided in opposing a Rule 12(b)(6) motion. It

considers all allegations of the complaint as true and is confined to the four corners of

the complaint. Lawrence, 919 F.2d at 1529. “Factual attacks, on the other hand,

challenge the existence of subject-matter jurisdiction in fact, and the district court may

consider matters outside of the pleadings.” Koury v. Sec'y, Dep't of Army, 488 F. App'x

355, 356 (11th Cir. 2012). It may consider extrinsic evidence such as deposition

testimony and affidavits. Odyssey Marine Expl., Inc. v. Unidentified Shipwrecked Vessel,

657 F.3d 1159, 1169 (11th Cir. 2011).

III. RELEVANT IMMIGRATION STATUTES

Title 8, United States Code, Section 1153(b)(2) provides, in pertinent part:

(2) Aliens who are members of the professions holding advanced degrees or

aliens of exceptional ability

(A) In general

Visas shall be made available, in a number not to exceed 28.6 percent of such

worldwide level, plus any visas not required for the classes specified in

paragraph (1), to qualified immigrants who are members of the professions

holding advanced degrees or their equivalent or who because of their

exceptional ability in the sciences, arts, or business, will substantially benefit

prospectively the national economy, cultural or educational interests, or welfare

of the United States, and whose services in the sciences, arts, professions, or

business are sought by an employer in the United States.

(B) Waiver of job offer

(i) National interest waiver

Subject to clause (ii), the Attorney General may, when the Attorney

General deems it to be in the national interest, waive the requirements of

subparagraph (A) that an alien’s services in the sciences, arts, professions,

or business be sought by an employer in the United States.

8 U.S.C. § 1153(b)(2)(A)-(B)(i).

IV. DISCUSSION

In filing his Form I-140 petition, Plaintiff sought a National Interest Waiver

pursuant to 8 U.S.C. § 1153(b)(2). When the USCIS denied his petition, Plaintiff

appealed the denial of his NIW to this Court under the Administrative Procedure Act,

5 U.S.C. § 701 (“APA”), arguing the agency’s decision is arbitrary, capricious and

contrary to law. Defendants assert that the Court lacks subject-matter jurisdiction to

consider Plaintiff’s claims. Plaintiff invokes the jurisdiction of the Court under 5

U.S.C. § 702 (the APA) and 28 U.S.C. §§ 2201–2202 (the Declaratory Judgment Act).

Doc. 1 ¶ 9.

The Declaratory Judgment Act “does not, of itself, confer jurisdiction upon the

federal courts; a suit brought under the Act must state some independent source of

jurisdiction, such as the existence of diversity or the presentation of a federal question.”

Borden v. Katzman, 881 F.2d 1035, 1037 (11th Cir. 1989) (citing Skelly Oil Co. v. Phillips

Co., 339 U.S. 667 (1950)). For this reason, Defendants submit Plaintiff cannot establish

the Court’s jurisdiction under the Declaratory Judgment Act. But Plaintiff does not

rely solely on the Declaratory Judgment Act for the Court’s jurisdiction. Plaintiff also

relies on the provisions of the APA, which provide that a federal court may “set aside

agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” 5 U.S.C. § 706(2)(A).

There are two circumstances, however, in which the provisions of the APA do

not confer jurisdiction. Brasil v. Sec’y, Dep’t of Homeland Sec., 28 F.4th 1189, 1192 (11th

Cir. 2022) (citing 5 U.S.C. § 701(a)). “The first is when a statute expressly ‘preclude[s]

judicial review.’ 5 U.S.C. § 701(a)(1). The second is when, even though Congress has

not explicitly precluded judicial review, the ‘agency action is committed to agency

discretion by law.’ Id. § 701(a)(2).” Brasil, 28 F.4th at 1192. “If a statute precludes

judicial review, federal courts lack subject matter jurisdiction.” Id. (citing Zhu v.

Gonzales, 411 F.3d 292, 293 (D.C. Cir. 2005)).

Defendants argue the Court is without jurisdiction to review Plaintiff’s appeal

of the USCIS’s denial of his NIW because Congress has barred judicial review of

discretionary decisions involving immigration matters. Specifically, 8 U.S.C. § 1252

provides that no court shall have jurisdiction to review “decision[s] or action[s] of the

Attorney General . . . the authority for which is specified under this subchapter to be

in the discretion of the Attorney General.” 8 U.S.C. § 1252(a)(2)(B)(ii). The relevant

NIW provision states “the Attorney General may, when the Attorney General deems

it to be in the national interest, waive the requirements . . . that an alien’s services . . .

be sought by an employer in the United States.” 8 U.S.C. § 1153(b)(2)(B)(i) (emphasis

added). The “word ‘may’ customarily connotes discretion.” Brasil, 28 F.4th at 1193

(quoting Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 346 (2005)). Because the plain

language of the statute grants the Attorney General discretion to grants NIWs, such

decisions are barred from judicial review. The Eleventh Circuit in Brasil further

observed that “the ‘national interest’ standard invokes broader economic and national-

security considerations, and such determinations are firmly committed to the

discretion of the Executive Branch.” Brasil, 28 F.4th at 1193 (quoting Poursina v. U.S.

Citizenship & Immigr. Servs., 936 F.3d 868, 874 (9th Cir. 2019)).

Plaintiff responds in opposition arguing that because he is challenging the

nondiscretionary process leading up to Defendants’ decision, and not the merits of the

discretionary immigration decision, the Court has jurisdiction to consider this matter

under the APA. Notwithstanding Plaintiff’s argument, review of the Complaint

reveals that a challenge to the merits of the decision is precisely the relief sought. See

Doc. 1 at 22 (requesting an Order finding that Plaintiff has satisfied the requirements

for a NIW and requiring the approval of Plaintiff’s I-140 petition). Thus, to the extent

the Complaint challenges the merits of Defendants’ decision, the Complaint is due to

be dismissed. Such decisions are discretionary and not subject to judicial review.

As for Plaintiff’s allegations that he is challenging the “process” leading up to

the decision, the Eleventh Circuit in Kurapati v. U.S. Citizenship & Immigration Services,

775 F.3d 1255 (11th Cir. 2014), held that § 1252(a)(2)(B)(ii) does not preclude judicial

review of a challenge that “USCIS failed to follow the correct procedure in revoking

the I-140 petitions” because a failure to follow proper procedure is not discretionary.

Id. at 1262. Although Kurapati involved a revocation, as opposed to a denial, the

appellate court’s analysis is instructive here. “Even when a decision is committed to

agency discretion, a court may consider allegations that an agency failed to follow its

own binding regulations.” Id. (quoting Fla. Dep’t of Bus. Regul. v. U.S. Dep’t of Interior,

768 F.2d 1248, 1257 n.11 (11th Cir. 1985) abrogated on other grounds by Match-E-Be-

Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012)). “Agencies

must respect their own procedural rules and regulations.” Kurapati, 775 F.3d at 1262

(quoting Gonzalez v. Reno, 212 F.3d 1338, 1349 (11th Cir. 2000)).

However, Plaintiff’s conclusory allegations here that USCIS did not follow its

established policy guidance and that the USCIS’s decision “violates the governing

statute and regulations” lacks sufficient factual specificity to demonstrate that the

Court’s subject- matter jurisdiction is properly invoked. See Lawrence, 919 F.2d at 1529

(holding that in assessing a motion to dismiss pursuant to Rule12(b)(1) the Court

affords plaintiff the same safeguards as those provided in opposing a Rule 12(b)(6));

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (holding that a complaint’s mere naked

assertions are insufficient; it must contain sufficient factual matter). Plaintiff’s

allegations fall short.

The only factual detail related to the process that Plaintiff appears to rely on is

his claim that USCIS misinterpreted and misapplied Matter of Katigbak, 14 I. & N. Dec.

45 (BIA 1971) when it refused to consider the President’s Executive Order Plaintiff

submitted as additional evidence regarding national interest. This argument is

unpersuasive. Plaintiff argues Katigbak’s holding is limited to a finding that a

beneficiary must be a qualified member of the profession at the time of filing his visa

petition. But Plaintiff’s reading of Katigbak is too narrow, as the opinion goes on to

explain that considering information acquired after the filing date of a visa petition

results in a beneficiary receiving “a priority date for visa issuance at a time when not

qualified for the preference status sought.” Matter of Katigbak, 14 I. & N. Dec. at 45.

In relevant part, the regulations require that “[a]n applicant or petitioner must

establish that he or she is eligible for the requested benefit at the time of filing the benefit

request and must continue to be eligible through adjudication.” 8 C.F.R. § 103.2(b)(1)

(emphasis added). “A benefit request shall be denied where evidence submitted in

response to a request for evidence does not establish filing eligibility at the time the

benefit request was filed. A benefit request shall be denied where any benefit request

upon which it was based was filed subsequently.” 8 C.F.R. § 103.2(b)(12). The

Executive Order is dated May 12, 2021,2 which post-dates Plaintiff’s November 2020

petition. Because this supplemental evidence submitted in support of Plaintiff’s claim

of national interest was not in existence at the time Plaintiff filed his petition in

November 2020, it was not considered for purposes of determining his eligibility as of

November 2020. Doc. 1-5 at 4. Plaintiff additionally complains that the USCIS

discounted numerous letters and other evidence submitted in support of Plaintiff’s

Form I-140 petition for national interest waiver, but such argument goes to the merits

of the decision, not the decision-making process and procedures.

2 Plaintiff attaches the Executive Order to the Complaint. Doc. 1-4 at 47–66. The Court may

appropriately consider exhibits to a complaint when ruling on a motion to dismiss. See GSW,

Inc. v. Long Cnty., Ga., 999 F.2d 1508, 1510 (11th Cir. 1993) (on a motion to dismiss, “the

court limits its consideration to the pleadings and exhibits attached thereto”); see also Fed. R.

Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the

pleading for all purposes.”).

On the facts alleged, Plaintiff fails to establish the Court’s subject-matter

jurisdiction. However, to the extent that Plaintiff would be able to allege factual detail

to support his conclusory allegation that USCIS failed to follow binding rules and

regulations,3 then § 1252(a)(2)(B)(ii) will not necessarily preclude judicial review. See

Kurapati, 775 F.3d at 1262. Plaintiff will be given one opportunity to amend to correct

the pleading deficiencies.

Accordingly, it is

ORDERED:

1. Defendants’ Motion to Dismiss (Doc. 11) is GRANTED, in part.

2. Plaintiff’s Complaint is dismissed, and Plaintiff will be granted one

opportunity to file an Amended Complaint that establishes the Court’s subject-matter

jurisdiction.

3. If he so chooses, within fourteen (14) days, Plaintiff may file an Amended

Complaint that corrects the deficiencies referenced herein.

4. Failure to timely file an Amended Complaint that clearly alleges the

Court’s subject-matter jurisdiction within the time permitted will result in this action

being dismissed without prejudice and without further notice.

3 In its motion to dismiss, Defendants make the argument that there are no regulations setting

forth the requirements for establishing the existence of the national interest. The argument is

made in passing and not well-developed. But because Plaintiff will have the opportunity to

amend, Plaintiff should be mindful of this argument in preparing an Amended Complaint.

DONE AND ORDERED in Tampa, Florida on January 17, 2024.

Chakene Charts Mo TL ol yell

Charlene Edwards Honeywell

United States District Judge

Copies to:

Counsel of Record

Unrepresented Parties, if any

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