# Nyumah v. Wolf

> District Court, E.D. Missouri · November 12, 2020

URL: https://www.frixlaw.com/law-library/cases/10233995

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** November 12, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JOHN NYUMAH and )
VICTORIA ROBERTS, )
)
Plaintiffs, )
)
v. ) Case No. 4:19-CV-03283-JAR
)
CHAD WOLF, )
Acting Secretary of the )
Department of Homeland Security, )
et al., )
)
Defendants. )

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss. (Doc. 11). Plaintiffs
have responded (Doc. 15), and Defendants have replied. (Doc. 19). For the reasons discussed
below, the motion will be granted and this case will be dismissed for lack of subject matter
jurisdiction.

I. BACKGROUND
John Nyumah came to the United States as a visitor on October 31, 2013 and proceeded to
marry Virginia Roberts, a U.S. citizen, on December 19, 2014. (Doc. 10 at ¶¶ 7-8). On April 3,
2015, Roberts filed Form I-130 Petitions for Alien Relative (“I-130 Petitions”) for Nyumah and
his son with United States Citizenship and Immigration Services (“USCIS”), while Nyumah filed
on his own behalf a Form I-485 Application to Register Permanent Residence or Adjust Status (“I-
485 Application”). (Id. at ¶ 9). Having not received a decision for over four years despite
submitting to multiple interviews and providing substantial documentation, Plaintiffs filed a
Complaint in this Court on December 17, 2019. (Doc. 1).
Notices of Intent to Deny the I-130 Petitions and the I-485 Application. (Doc. 10 at ¶ 23; Doc. 10-

14 at 7-13). After receiving additional evidence, however, USCIS approved the I-130 Petitions
while formally denying the I-485 Application. (Doc. 10 at ¶¶ 34-35; Docs. 12-1, 12-2, 12-3). The
primary basis for denying the I-485 Application was USCIS’ finding that Nyumah had submitted
fraudulent documentation in order to prove the validity of his previous marriage to Abigail Ceoh
Nyumah in Liberia when seeking a nonimmigrant visa in 2013. (Doc. 10-14 at 8; Doc. 12-3 at 3-
5). Based on this determination, Nyumah did not qualify for an adjustment under 8 U.S.C. §
1255(a). See 8 U.S.C. § 1182(a)(6)(C)(i) (“Any alien who, by fraud or willfully misrepresenting a
material fact, seeks to procure (or has sought to procure or has procured) a visa, other
documentation, or admission into the United States or other benefit provided under this chapter is

inadmissible.”). USCIS also determined that “the favorable factors [ ] do not warrant a favorable
exercise of discretion in light of the adverse factors,” and alternatively denied the I-485
Application as an apparent exercise of its discretionary authority. (Doc. 12-3 at 5).
Plaintiffs have amended their complaint without objection from Defendants and now
challenge the denial of Nyumah’s I-485 Application as unlawful. (Doc. 10). Specifically, Plaintiffs
allege that the finding that Nyumah’s Liberian marriage license was fraudulent is “fatally flawed,
arbitrary, and capricious.” (Id. at ¶ 36). Plaintiffs contend they have a right of review in this Court
under the Administrative Procedure Act (Count I) and request a declaratory judgment against
Defendants per 28 U.S.C. § 2201 (Count II). Defendants seek dismissal for lack of subject matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).1

1 Defendants also seek dismissal pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that Plaintiffs’ claims have been
mooted and therefore do not constitute a live case or controversy under Article III, § 2 of the U.S. Constitution. (Doc.
12 at 9). This Court’s jurisdiction is indeed limited to live cases or controversies, but “[q]uestions of mootness are
matters of subject-matter jurisdiction.” Davis v. Anthony, Inc., 886 F.3d 674, 677 (8th Cir. 2018). Accordingly,
Defendants’ mootness argument is properly addressed under Rule 12(b)(1) as well.
When a party challenges this Court’s subject matter jurisdiction, at issue is this Court’s

“very power to hear the case.” Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990) (quoting
Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). In deciding a
motion under Rule 12(b)(1), this Court “must distinguish between a facial attack – where it looks
only to the face of the pleadings – and a factual attack – where it may consider matters outside the
pleadings.” Croyle by and through Croyle v. United States, 908 F.3d 377, 380 (8th Cir. 2018). In
either case, Plaintiff bears the burden of proving the existence of subject matter jurisdiction.
Buckler v. United States, 919 F.3d 1038, 1044 (8th Cir. 2019).
Defendants do not state whether they are lodging a facial or factual attack. While there are
contested facts as to the underlying denial (i.e., whether Nyumah’s prior marriage was legitimate

or fraudulently misrepresented), these facts need not be resolved to determine whether this Court
has jurisdiction. The parties only dispute whether the denial of Nyumah’s application was a
discretionary determination not subject to this Court’s review. Accordingly, it is appropriate to
accept as true all facts alleged in the Amended Complaint and consider only those materials
necessarily embraced by the pleadings.2 Osborn, 918 F.2d at 729 n.6 (“[N]on-moving party
receives the same protections as it would defending against a motion brought under Rule
12(b)(6).”). Other courts have reached the same conclusion under similar circumstances. See, e.g.,
Pritchett v. U.S. Dep’t of Homeland Security, Case No. 4:19-CV-458-RLW, 2020 WL 1032444,

2 Plaintiffs’ Amended Complaint attaches and thereby incorporates virtually all of the pertinent documents on this
motion to dismiss. (Doc. 10). The Amended Complaint does not appear to specifically attach the May 27, 2020 Notice
of Decision denying Nyumah’s I-485 Application. This key document, however, is clearly embraced by the Amended
Complaint and may be considered in this facial attack on jurisdiction. (Id. at ¶ 35, citing to Doc. 8-3). “Materials
embraced by the [Amended Complaint] include ‘documents whose contents are alleged in a complaint and whose
authenticity no party questions, but which are not physically attached to the pleading.’” Herbert L.R. v. Tritten, 421
F. Supp. 3d 688, 692 (D. Minn. 2019) (quoting Kushner v. Beverly Enters., Inc., 317 F.3d 820, 831 (8th Cir. 2003)).
1774439, at *1 (E.D. Mo. June 18, 2007).

III. STATUTORY CONTEXT
Congress has created a process for adjusting one’s status from nonimmigrant to lawful
permanent resident under the Immigration and Nationality Act (“INA”). 8 U.S.C. § 1255. To be
eligible for an adjustment, the nonimmigrant must be “admissible to the United States” among
other requirements. 8 U.S.C. § 1255(a)(2). The applicant bears the burden of proving that he is not
inadmissible. See Godfrey v. Lynch, 811 F.3d 1013, 1017 (8th Cir. 2016). A nonimmigrant “who,
by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or
has procured) a visa, other documentation, or admission into the United States or other benefit . .
. is inadmissible.” 8 U.S.C. § 1182(a)(6)(C)(i).
Even if an applicant meets the criteria for admissibility established by the statute, it is
ultimately within the Attorney General’s discretion whether to grant adjustment of status. See
Mutie-Timothy v. Lynch, 811 F.3d 1044, 1048 (8th Cir. 2016) (“Adjustment of status is a
discretionary decision committed to the Attorney General.”). Through the Illegal Immigration

Reform and Immigrant Responsibility Act and REAL ID Act of 2005, Congress has expressly
prohibited federal courts from exercising jurisdiction over this discretionary decision. Pub. L. No.
104-208, 110 Stat. 3009-546 (1996); Pub. L. 109-13, 119 Stat. 302 (2005); see 8 U.S.C. §
1252(a)(2)(B) (“Notwithstanding any other provision of law . . . no court shall have jurisdiction to
review -- (i) any judgment regarding the granting of relief under section . . . 1255 of this title, or
(ii) any other decision or action of the Attorney General . . . the authority for which is specified in
this subchapter to be in the discretion of the Attorney General.”). In the Eighth Circuit, claims
regarding the discretionary denial of status adjustment applications have frequently been dismissed
Pritchett, 2020 WL 1032444. Judicial review is available in an appropriate appellate court,

however, if a complaint raises a legal or constitutional claim. Mutie-Timothy, 811 F.3d at 1048;
see 8 U.S.C. § 1252(a)(2)(D).

IV. DISCUSSION
Discretionary Acts Under 8 U.S.C. § 1252(a)(2)(B)
Defendants contend that, pursuant to 8 U.S.C. § 1252(a)(2)(B), this Court lacks jurisdiction
over the discretionary denial of Nyumah’s I-485 Application. Plaintiffs “agree that this is the law
as it pertains to discretionary denials” but argue that “Defendants never engaged in the balancing
test required by Eighth Circuit law and their own findings to make a discretionary analysis.” (Doc.
15 at 1).3 In its Notice of Decision, USCIS first outlined the basis for its determination that
Nyumah had fraudulently or willfully misrepresented a material fact, the legality of his prior
marriage to Abigail Ceoh Nyumah.
Because you have not established that you were in fact legally married to Abigail
Ceoh Nyumah, USCIS has determined that you have not met your burden to
establish that you are not inadmissible for fraud and willful misrepresentation of a

3 It is unclear if this Court has jurisdiction to review the USCIS’ denial even if the decision were nondiscretionary. 8
U.S.C. § 1252(a)(2)(B)(i) provides that no court shall have jurisdiction to review “any judgment regarding the granting
of relief under section . . . 1255 of this title.” 8 U.S.C. § 1252(a)(2)(B)(ii) then provides that no court shall have
jurisdiction over an action “specified under this subchapter to be in the discretion of the Attorney General.” A strict
interpretation would suggest that § 1252(a)(2)(B)(i) applies to non-discretionary denials; but this interpretation is
inconsistent with the section title: “Denials of discretionary relief.” Recently, in Jimenez Verastegui v. Wolf, the U.S.
District Court for the District of Columbia analyzed this issue in considerable detail and held that the “statute does not
distinguish ‘between judgments that are discretionary and judgments that are purely legal.’” Case No. 18-2358 (TJK),
2020 WL 3297230, at *4 (D.D.C. June 18, 2020) (quoting Djodeir v. Mayorkas, 657 F. Supp. 2d 22, 24 (D.D.C.
2009)). But see Mamigonian v. Biggs, 710 F.3d 936, 945 (9th Cir. 2013) (“[D]istrict courts have jurisdiction to hear
cases challenging final agency determinations respecting eligibility for the immigration benefits enumerated in 8
U.S.C. § 1252(a)(2)(B)(i) made on nondiscretionary grounds.”).

The Eighth Circuit has consistently framed 8 U.S.C. § 1252(a)(2)(B) as barring review of the “discretionary denial of
adjustment of status.” Toby, 618 F.3d at 967; see also Diallo v. Holder, 715 F.3d 714, 715 (8th Cir. 2013) (“We
generally do not have jurisdiction to review discretionary denials of adjustment of status.”). In their briefing, moreover,
Defendants do not argue that 8 U.S.C. § 1252(a)(2)(B)(i) bars review of non-discretionary denials; instead, Defendants
contend that discretion was in fact exercised and therefore judicial review is not available. Because this Court agrees
that discretion was exercised, it need not decide whether the statute also precludes review of non-discretionary denials
of adjustment of status applications.
adjust. (Doc. 12-3 at 4).

This determination would be sufficient to deny Nyumah’s I-485 Application but may be
subject to this Court’s jurisdiction on appeal. USCIS proceeded, however, to find in the alternative
that Nyumah did not warrant an exercise of favorable discretion. Given its central role in this case,
the basis for USCIS’ allegedly discretionary determination is worth quoting in full:
Alternatively, even if you had established statutory eligibility for adjustment of
status (which you have not), USCIS would nevertheless deny your application in
the exercise of discretion. The granting of adjustment of status to that of a lawful
permanent resident is a discretionary benefit. See section 245(a) of the INA. Mere
eligibility is not the only factor considered in adjustment of status. Adverse factors
may preclude a favorable exercise of discretion by USCIS.

An applicant must demonstrate eligibility for adjustment of status as a matter of
law and in the exercise of discretion. Generally, favorable factors such as family
ties, hardship, and length of residence in the United States can be considered in the
favorable exercise of discretion.

You have provided to USCIS evidence of factors to be considered in your favor.
These factors include: (1) your marriage to your U.S. citizen spouse, Victoria
Roberts, (2) your employment as a Developmental Assistant I with the St. Louis
County Developmental Disabilities Treatment Center in St. Louis County,
Missouri, (3) your lack of a criminal history, and (4) your attendance at the New
Testament Christian Church with your U.S. citizen spouse.

However, USCIS has determined that your case presents significant adverse factors
which show that discretion should not be exercised in your favor. In particular, you
submitted a fraudulent marriage license to USCIS with your Form I-485. In
addition, you claimed to be married as part of your nonimmigrant visa application,
which served as a favorable factor in adjudication of that application, but have
failed to produce sufficient evidence to prove that the claimed marriage was in fact
valid and legal.

After a careful review of all of the facts, USCIS has determined that the favorable
factors above do not warrant a favorable exercise of discretion in light of the
adverse factors. Thus, in addition to denying your Form I-485 because you failed
to meet the burden to establish that you are not inadmissible pursuant to INA
212(a)(6)(C)(i), you have also not met the burden of demonstrating to USCIS that
you warrant a favorable exercise of discretion. Therefore, in the alternative, USCIS
also denies your application in the exercise of discretion. (Id. at 4-5).
discretion.

Plaintiffs argue that USCIS’ denial turned entirely on whether Nyumah’s Liberian marriage
license was fraudulent, which “is not a judgment call” because “[i]t is either valid or it is not.”
(Doc. 15 at 3). Rather than being discretionary, Plaintiffs claim that USCIS’ denial relies on a
“baseless allegation of fraud, devised by a Keystone cops-like ‘investigation’ that flies in the face
of readily available evidence.” (Id. at 6). Plaintiffs request that this Court “direct the parties to
engage in discovery so that the Court may be presented with evidence to make a case-by-case
determination” as to whether a discretionary decision was made. (Id. at 12). Plaintiffs devote
substantial energy in the Amended Complaint and response to the instant motion arguing that
Nyumah’s prior marriage was in fact legitimate. The only relevant question for this Court at the

moment, however, is whether USCIS exercised discretion in denying Nyumah’s I-485
Application.
Plaintiffs rely on Hajiani-Niroumand v. I.N.S. for the proposition that a discretionary
decision requires “balanc[ing] the social and humane factors presented by the alien against the
adverse factors including the undesirability of the alien as a permanent resident.” 26 F.3d 832, 835
(8th Cir. 1994). As Defendants note, however, this decision preceded Congress’ enactment of the
jurisdictional bar at 8 U.S.C. § 1252(a)(2)(B), and the decision does not consider the possibility
that the court lacked jurisdiction. See Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (1996).
Other circuits have been more willing to review purportedly discretionary denials of

adjustment of status. In Singh v. Gonzales, the Second Circuit reviewed a denial of adjustment of
status where the “discretionary ruling appears to have been the same as the basis for [the
Immigration Judge’s] ruling on [plaintiff’s] eligibility for adjustment of status.” 468 F.3d 135, 138
citing Singh, has reached a similar conclusion. Yamoah v. Lynch, 641 Fed. App’x 12, 16 n.4 (1st

Cir. 2016) (“However, where an alternative, nondiscretionary ground forms the basis for the
discretionary judgment, we may review the nondiscretionary ground.”). At least one district court
within the Eighth Circuit has grappled with the Singh holding, though the court did not necessarily
adopt its reasoning. Suastegui Vega v. McAleenan, Case No. 8:19-CV-189, 2019 WL 3219326, at
*4-5 (D. Neb. July 17, 2019).4
The Eighth Circuit, however, has consistently found that the federal courts lack jurisdiction
over discretionary adjustment of status denials. In Mutie-Timothy v. Lynch, the plaintiff sought
review of an order by the Board of Immigration Appeals (“BIA”) upholding an Immigration
Judge’s (“IJ”) denial of her application for adjustment of status. 811 F.3d 1044, 1045 (8th Cir.

2016). The BIA concluded that “substantial evidence in the record fully supported the IJ’s finding
that Mutie-Timothy was not credible and had committed marriage fraud” and accordingly affirmed
the IJ’s discretionary denial of adjustment of status. Id. at 1048. The Eighth Circuit held that it
“lack[ed] jurisdiction to review the BIA’s discretional denial of adjustment of status,” specifically
noting that “factual arguments couched in legal or constitutional terms are insufficient to overcome
the jurisdictional bar.” Id. at 1048-49. In Toby v. Holder, the plaintiff argued that the IJ’s credibility
determination was unreasonable. The Eighth Circuit again held that it “lack[s] jurisdiction to
review an IJ’s weighing of discretionary factors.” 618 F.3d 963, 968 (8th Cir. 2010); see also
Diallo v. Holder, 715 F.3d 714, 715 (8th Cir. 2013) (“We generally do not have jurisdiction to
review discretionary denials of adjustment of status.”); Pritchett v. U.S. Dep’t of Homeland

4 In Suastegui Vega, the plaintiff erroneously argued that the Attorney General could not consider the formal eligibility
requirements when making a discretionary determination. As the court properly noted, this argument is “premised on
an illogical understanding of the Attorney General’s discretionary authority,” and it is abundantly clear that the formal
eligibility factors may be considered when making a discretionary determination. Suastegui Vega, 2019 WL 3219326,
at *5. The court distinguished the plaintiff’s argument from the decision in Singh.
Court finds it is jurisdictionally barred from reviewing the denial of Plaintiff’s Form I-485

application.”).
An exercise of discretion requires that discretion be exercised. “[D]iscretion is after all the
name of an intellectual virtue: it is a near-synonym for practical wisdom or sagacity or prudence;
it is the power of discerning or distinguishing what in various fields is appropriate to be done and
etymologically connected with the notion of discerning.” H.L.A. Hart, Discretion, 127 HARV. L.
REV. 652, 656 (2013). The Eighth Circuit has acknowledged that “[a]djustment of status requires
a balancing of favorable and adverse factors.” Toby, 618 F.3d at 968. Plaintiffs express legitimate
concern that “merely by using the word[] ‘discretionary’ in their denial” Defendants become
“immune from any judicial review.” (Doc. 15 at 14).

An agency’s bare assertion that it exercised discretion, without a hint of judgment,
balancing, or genuine consideration of the issues, does not establish an exercise of discretion. But
that is not the situation here. Instead, the Notice of Decision reflects USCIS’ determination that,
“[a]fter a careful review of all the facts,” the positive factors in Nyumah’s favor did not outweigh
the “significant adverse factors,” particularly the allegedly fraudulent marriage license. USCIS
explicitly considered Nyumah’s marriage to Roberts, employment, lack of criminal history, and
church attendance. These positive factors were not sufficient to overcome USCIS’ adverse
findings. Plaintiffs persuasively challenge the soundness of USCIS’ determination that Nyumah’s
Liberian marriage was fraudulent. In doing so, Plaintiffs question the factual underpinnings of
USCIS’ discretionary judgment; the ultimate decision, however, remains discretionary. Where

USCIS has identified the relevant balancing factors and considered individual circumstances
before determining that an applicant did not warrant a favorable exercise of discretion, the statute
does not permit this Court to peer behind the curtain and insist that no discretion was exercised.
1252(a)(2)(B).

Administrative Procedure Act
Plaintiff argues that even if USCIS exercised discretion, the Administrative Procedure Act
(“APA”) provides this Court with jurisdiction to determine if USCIS’ denial was arbitrary or
capricious. (Doc. 15 at 12). Defendants contend that the APA cannot serve as an independent
jurisdictional hook, and certain sections of the APA explicitly prohibit the exercise of jurisdiction
over this case. (Doc. 12 at 6-7). There is generally a presumption of judicial review of final agency
action, “but this presumption may be overridden in certain circumstances.” Tamenut v. Mukasey,
521 F.3d 1000, 1003 (8th Cir. 2008) (en banc) (per curiam).
By its plain language, the APA does not permit this Court to exercise jurisdiction over
Plaintiffs’ case. The APA specifically provides that its provisions shall apply “except to the extent
that – (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion
by law.” 5 U.S.C. § 701(a)(1)-(2). As discussed above, 8 U.S.C. § 1252(a)(2)(B) expressly
precludes judicial review of discretionary denials of adjustment of status applications. The Eighth

Circuit recently addressed this exact issue and held that 8 § U.S.C. 1252(a)(2)(B) is a statute
precluding judicial review and therefore there is no jurisdiction under the APA. Al-Saadoon v.
Barr, 973 F.3d 794, 802 (8th Cir. 2020); see also Pritchett, 2020 WL 1032444, at *4 (“Based on
this express statutory preclusion of judicial review, the APA is not available to provide a judicial
review of the denial of Plaintiff’s Form I-485.”). Pursuant to the clear statutory language and
applicable precedent, the APA cannot serve as the basis for this Court’s jurisdiction.
In their Amended Complaint, Plaintiffs allege that Defendants have violated the U.S.

Constitution, specifically referencing the Due Process Clause of the Fifth Amendment. (Doc. 10
at ¶¶ 1, 22). Defendants argue that Plaintiffs cannot avoid the INA’s jurisdictional bar by making
a meritless constitutional claim. (Doc. 12 at 8-9). Plaintiffs did not respond to this argument. The
Eighth Circuit has clearly stated that “[b]ecause adjustment of status amounts to a power to
dispense mercy, an alien can have no constitutionally protected liberty interest in such speculative
relief and cannot state a claim for a violation of due process rights.” Guled v. Mukasey, 515 F.3d
872, 880 (8th Cir. 2008) (citing Etchu-Njang v. Gonzales, 403 F.3d 577, 585 (8th Cir. 2005)).
Plaintiffs’ factual arguments couched in constitutional terms, moreover, cannot overcome the
INA’s jurisdictional bar. See Mutie-Timothy v. Lynch, 811 F.3d 1044, 1048 (8th Cir. 2016).

Accordingly, Plaintiffs are “unable to establish jurisdiction based on an alleged constitutional
violation.” Pritchett, 2020 WL 1032444, at *4.5

V. CONCLUSION
The discussion of discretionary factors in the USCIS Notice of Decision leaves much to be
desired. This Court cannot reasonably conclude, however, that no discretion was exercised. Under
the plain language of 8 U.S.C. § 1252(a)(2)(B) and applicable Eighth Circuit precedent, this Court
lacks jurisdiction over the discretionary denial of Nyumah’s I-485 Application as a matter of law.
Plaintiffs also cannot carry their burden of demonstrating this Court’s jurisdiction via the APA or
Due Process Clause. As a result, this case must be dismissed for lack of subject matter jurisdiction.

5 Even if Plaintiffs could make out a plausible constitutional claim, this Court would lack jurisdiction because 8 U.S.C.
§ 1252(a)(2)(D) permits review of such claims in “an appropriate court of appeals,” not the district court. See
Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir. 2009).
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (Doc. 11) is
GRANTED and this case is DISMISSED.

Dated this 12th day of November, 2020.

( ‘es A. ROSS
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10233995. Public record. Not legal advice.