The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ALICE MUTASA,
Plaintiff,
v. Civ. No. 20-9321 (KM) (ESK)
U.S. CITIZENSHIP AND OPINION
IMMMIGRATION SERVICES and
KENNETH CUCCINELLI in his
capacity as Acting Director,
Defendant.
KEVIN MCNULTY, U.S.D.J.:
Alice Mutasa and her employer filed an employment visa petition with
the United States Citizenship and Immigration Services (“the Service”). The
Service rejected her petition because a page was missing, she and her employer
corrected the error, and then the Service denied her petition because a required
certificate had, by then, expired.
Mutasa sued the Service, alleging that its actions were unlawful,
arbitrary, capricious, and an abuse of discretion. The Service successfully
moved to dismiss (DE 16, 19)1 and Mutasa was granted leave to amend (DE
32). The Service now moves to dismiss Mutasa’s Amended Complaint (DE 33).
For the following reasons, the Service’s motion to dismiss (DE 40) is
GRANTED.
1 Certain citations to the record are abbreviated as follows:
DE = docket entry in this case
Am. Compl. = Amended Complaint (DE 33)
Mot. = The Service’s Brief in Support of its Motion to Dismiss (DE 40-1)
Opp. = Mutasa’s Opposition to the Service’s Motion to Dismiss (DE 45)
Reply = The Service’s reply in support of its Motion to Dismiss (DE 48)
I. BACKGROUND & PROCEDURAL HISTORY
I write primarily for the parties and assume a familiarity with the facts of
the case. A more detailed background can be found in my prior opinion
granting dismissal of the original complaint. (DE 19.)
To briefly summarize: Mutasa is a Zimbabwean citizen who received a
graduate degree from a United States university and has been working for her
current employer on an H-1B nonimmigrant visa since 2013. (Am. Compl. ¶
27–30.) In 2018 Mutasa and her employer began the process of adjusting her
status from a nonimmigrant visa to a permanent residency under the EB-3 visa
category. (Id. ¶ 31.) To successfully complete this process, the applicant’s
employer must first obtain a labor certification from the Department of Labor
attesting that there are no qualified workers in the United States available to
take the job. See 8 U.S.C. § 1182(a)(5)(A)(i). That certification is valid for 180
days. 20 C.F.R. § 656.30(b)(1). Once this certification is obtained, the employer
files Form I-140 and the employee files Form I-485 with the Service. 8 C.F.R. §
204.5(l)(1), (3)(i); § 245.2(a)(3)(ii). These forms are specifically for individuals
who already have legal work status to allow them to adjust that status to
permanent residency and are different from those filed by other types of
applicants looking to obtain entrance to or residence in the United States.
Mutasa’s employer obtained the DOL certification on June 4, 2019, and
it remained valid for the next 180 days. (Am. Compl. ¶ 38.) Unfortunately,
Mutasa and/or her employer allowed most of the 180-day period to lapse
before submitting her I-140 and I-485 forms, leaving little margin for error.
Mutasa’s employer inadvertently replaced the second page of the I-140 form
with the second page of the I-485 form, thus rendering her application
incomplete when it was filed with the Service on November 22, 2019. (Id. ¶ 39.)
The 180-day DOL certification period expired 9 days later, on December 1,
2019. On December 19, 2019, the Service rejected Mutasa’s application
because of the missing page. (Id. ¶ 44.) Mutasa and her employer quickly filed
corrected paperwork on December 26, 2019, but at that point the certification
had expired. (Id. ¶ 53.) On July 23, 2020, Mutasa filed this lawsuit with the
goal of forcing the Service to accept her application. It is unclear whether she
and her employer have sought a new certification so that she can reapply.
In my prior opinion granting the Service’s motion to dismiss the original
complaint (DE 19) I explained that this is fundamentally an Administrative
Procedure Act (“APA”) case and that neither the Service’s original nor
subsequent rejection of Mutasa’s application violated the APA by being
arbitrary or capricious. (Id. at 5.)
In her Amended Complaint, Mutasa adds allegations on two distinct
subjects. First, she adds a discussion of Vangala, et al. v. USCIS, a lawsuit that
challenged the Service’s application of a “no blank space rejection policy” to
applicants using some types of forms, including I-589 (for asylum applications)
and Form I-918 (for U visa petitions, for survivors of domestic violence and
other crimes who voluntarily cooperate with law enforcement). (Id. ¶ 63 (citing
Vangala, No. 20-8143 (N.D. Cal. November 19, 2020)).) In December 2020, the
Service acknowledged that the rejection policy existed for the I-589 and I-918
forms and, as part of a settlement that included no admission of wrongdoing,
agreed to stop applying the policy to those forms. Notably, the Vangala suit did
not involve any allegations related to I-140 or I-485 forms. On April 1, 2021,
after the Biden administration took office, the Service announced that it would
no longer reject Forms I-589, I-918, and I-612 if they include a blank space
and thus had “reverted back to the rejection criteria that existed for these
forms before October 2019.” (Am. Compl. ¶ 64.) Mutasa alleges that the no
blank space rejection policy was applied but never formalized with respect to
other types of applications. (Id. ¶ 66–69.) Indeed, the Service considered but
decided not to formalize it as a rule in the summer of 2020. (Id.) Nevertheless,
Mutasa maintains that the policy was applied to her application and was
unlawful.
Second, Mutasa argues that rejecting incomplete applications, especially
ones where the missing information could easily be gathered from other related
documents, is inefficient because the Service forfeits the application fee and
then has to analyze the subsequent, remedied application. (Id. ¶ 73–77.)
My prior opinion and order dismissed Mutasa’s initial complaint without
prejudice on March 31, 2021. (DE 19, 20.) She then moved for leave to amend
(DE 21), which was opposed by the Service (DE 27) but granted by Magistrate
Judge Edward S. Kiel on August 5, 2021 (DE 32). On August 13, 2021, Mutasa
filed her Amended Complaint. (DE 33.) The Service then moved to dismiss the
Amended Complaint. (DE 40.) Mutasa filed a brief in opposition to that motion
(DE 46), and the Service filed a reply (DE 48). This motion is fully briefed and
ripe for decision.
II. STANDARDS OF REVIEW
A. Failure to State a Claim
Federal Rule of Civil Procedure 8(a) does not require that a pleading
contain detailed factual allegations but “more than labels and conclusions.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations must raise
a claimant’s right to relief above a speculative level, so that a claim is “plausible
on its face.” Id. at 570. That standard is met when “factual content [] allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 12(b)(6)
provides for the dismissal of a complaint if it fails to state a claim. The
defendant bears the burden to show that no claim has been stated. Davis v.
Wells Fargo, 824 F.3d 333, 349 (3d Cir. 2016). I accept facts in the complaint
as true and draw reasonable inferences in the plaintiff’s favor. Morrow v.
Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (en banc).
III. DISCUSSION
The Amended Complaint’s two new sets of allegations do not raise
Mutasa’s claims to a plausible level, and they must therefore be dismissed. The
broader reasons for dismissal are discussed a length in my first opinion. (DE
19) Here, I focus specifically on the new allegations in the Amended Complaint.
A. Preclusive Effect of Amendment
As a preliminary issue, Mutasa argues that because she was given leave
to amend, this court has already determined that her amended complaint
satisfies the Rule 12(b)(6) standard and thus should not be dismissed. (Opp. at
8–9.) That is incorrect.
A motion to amend should be granted unless the amendment is (1)
unduly delayed or prejudicial; (2) made in bad faith; (3) made with a dilatory
motive; (4) the result of the failure to cure previous deficiencies; or (5)
futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). In giving Mutasa leave to
file her amended complaint, Magistrate Judge Edward S. Kiel determined that
amendment would not be futile under Fed. R. Civ. P. 15.
True, futility generally refers to the concept that the proposed
amendment would not survive a Rule 12(b)(6) motion to dismiss, even if all
allegations contained in the proposed pleading were accepted as true. Given
the liberal standard for the amendment of pleadings, however, “courts place a
heavy burden on opponents who wish to declare a proposed amendment
futile.” See Pharmaceutical Sales and Consulting Corp. v. J.W.S. Delavau Co.,
Inc., 106 F. Supp. 2d 761, 764 (D.N.J. 2000) (citations omitted); 6 Wright,
Miller & Kane Federal Practice and Procedure, § 1487 (2d ed. 1990).
While tracking Rule 12(b)(6), Rule 15 futility does not require substantive
motion practice on the merits of the claims:
If a proposed amendment is not clearly futile, then denial
of leave to amend is improper. This does not require the parties to
engage in the equivalent of substantive motion practice upon the
proposed new claim or defense; [it] does require, however, that the
newly asserted defense appear to be sufficiently well-grounded in
fact or law that it is not a frivolous pursuit.
Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D. 463, 468 (D.N.J.
1990) (emphasis added) (citations omitted); see also Marlowe Patent Holdings
LLC v. Dice Electronics, LLC, 293 F.R.D. 688, 695 (D.N.J. 2013).
Therefore, it is possible, indeed common, for an amended complaint to be
found not futile but to later be dismissed on full scrutiny under Rules 12(b)(6)
or 12(c). That is precisely what Magistrate Judge Kiel contemplated in his oral
ruling. Essentially, he ruled that he would permit amendment, precisely
because it would give the plaintiff the opportunity to present the new
allegations for my consideration in the context of a motion to dismiss:
And although Judge McNulty’s decision was based on a legal
conclusion that the rejection of plaintiff's petition was reasonable
under the facts presented in the complaint, I cannot and should
not substitute my judgment for Judge McNulty's consideration
of the newly presented factual allegations in plaintiff's
proposed amended complaint.
Judge McNulty may conclude that the change in policy by the
Service relating to other types of visa petitions and the new case
law cited by plaintiff may be relevant to determining whether the
Service acted unreasonably as to plaintiff's petition. To deny a
plaintiff the opportunity to recast their complaint with new
allegations that plaintiff claims bolsters her claims as well as
address the deficiency raised -- as well as address the deficiencies
raised in Judge McNulty's opinion would, in my opinion, be
inequitable, would not promote judicial efficiency, and would be
prejudicial to plaintiff.
In sum, whether plaintiff has addressed the futility
issues raised in Judge McNulty's opinion should be for Judge
McNulty's consideration.
I suspect defendants will likely file a motion to dismiss
largely modeled after their opposition to plaintiff’s motion to amend
the complaint. I don’t find there will be any significant prejudice to
defendant in granting leave to plaintiff to file the amended
complaint.
(Tr. of Mag. Judge Kiel’s oral ruling at pp. 10–11 (DE 35) (emphasis added)).
I therefore rule that the current motion to dismiss is not precluded by
Magistrate Judge Kiel’s liberal grant of the motion to amend.
B. Vangala Litigation
Vangala was a class action lawsuit that ended in a settlement agreement
in July 2021. The settlement agreement defined the “no blank space rejection
policy” as “USCIS’s policy or policies that required its personnel to reject any
Form I-589 or Form I-918 application or petition if any response field to a
question on such benefit request was left blank” (Vangala v. USCIS, No. 20-
8143 (N.D. Cal), Docket Entry 43-1 at 3 (emphasis added).) The settlement
agreement also notes that the Service “identified 43,501 submissions of USCIS
Form I-589, Application for Asylum and for Withholding of Removal, and
17,000 submissions of USCIS Form I-918, Petition for U Nonimmigrant Status,
that may have been rejected pursuant to the No Blank Space Rejection Policy.”
(Id. at 2.) As part of the settlement agreement, the Service also agreed to cease
applying the rejection policy to Forms I-914, I-360, and I-751, removed any
references to the policy from its website and now “does not apply the No Blank
Space Rejection Policy to other immigration benefit requests.” (Id. at 5.)
Nothing in the Vangala litigation, however, makes reference to the I-485
or I-140 forms that are relevant here. They are outside the scope of the Vangala
settlement. Nor does the Vangala case support the proposition that the Service
applied the same “blank space” policy to reject Mutasa’s I-485 and I-140 forms,
which were missing an entire page. At best, the Amended Complaint states that
the Service “has been accused of abusing its authority to reject other types of
applications beyond the three that the agency has publicly acknowledged,
including Form I-485 (adjustment of status applications).” (Am. Compl. ¶ 65.)2
This is not an admission or a statement of policy by the Service. Rather, it is an
adversary’s statement about the Service’s procedures, based on unspecified
“reports” which it has “passed on[]” to the Service. An allegation, however,
2 This allegation cites to a question-and-answer document from the National
Immigration Litigation Alliance, dated January 14, 2021. The document states, in
response to the question “To what applications has USCIS applied the rejection
policy?” that “counsel in Vangala have passed onto USCIS reports of the policy being
applied to other types of applications, such as adjustment of status (Form I-
485).”USCIS Updates Intake Policies and Halts Application of the Rejection Policy in
Response to Vangala v. USCIS, Frequently Asked Questions, National Immigration
Litigation Alliance (January 14, 2021),
https://www.nwirp.org/uploads/2021/01/Vangala-FAQ-and-Updated-USCIS-
Guidance.pdf.
must be plausibly supported by facts, not merely by the happenstance that
someone else made the same allegation.
In sum, then, the Amended Complaint says nothing substantive about
the “no blank space rejection policy” being applied to Mutasa’s I-485 form, and
nothing at all about the I-140 form. Mutasa notes correctly that at this stage I
must make all possible inferences in her favor. (Opp. at 9.) Such inferences,
however, must be based on pleaded facts. Iqbal, 556 U.S. at 678. Here, such
facts are lacking.
What is more, it is not at all clear that such a policy, if it did exist and
was applied to Mutasa’s application, would have been unlawful.3 As the Service
points out, the Vangala litigation settled without any admission of wrongdoing.
(Mot. at 6.) This leaves Mutasa to argue that the policy’s reversal was evidence
of its unlawfulness: “To demonstrate USCIS’s malevolence in rejecting the I-140
Petition, Plaintiff offers the fact that USCIS recently reversed a related policy
and returned to its longstanding practice of accepting and adjudicating forms
with missing information, which Plaintiff alleges amounts to a tacit admission
that Defendant knew all along that its actions exceeded the bounds of its
regulatory authority.” (Opp. at 10; see also id. at 15 (“by withdrawing the policy
altogether, Defendant conceded its unlawfulness”).) I find, however, that the
inferential leap is unjustified. Agencies are permitted to change their policies
and frequently do so under a new administration. It is well established that an
agency may change its prior policy if “the new policy is permissible under the
statute, and the agency ... acknowledges it is changing its policy and shows
that there are good reasons for the new policy and that the agency believes it to
be better, which the conscious change of course adequately indicates.” Guedes
v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109, 133
(D.D.C.) (cleaned up), aff'd, 920 F.3d 1 (D.C. Cir. 2019).
3 Also, as I noted in the prior opinion, Mutasa’s application did not contain a
“blank space”; rather it was incomplete, missing an entire page. (DE 19 at 10.)
The final link in Mutasa’s argument is that her situation is so similar to
that of the plaintiffs in the Vangala litigation that the policy change they
secured via settlement must also be applied to her. (Opp. at 13.) This argument
is both unclear and unavailing. First, as discussed above, it is not clear that
the policy at issue ever applied to her or was even unlawful. Second, and more
importantly, it is lawful for the Service to apply different standards to
applicants using different forms so long as it has a rational basis for doing so.
F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993); see also Ursack Inc.
v. Sierra Interagency Black Bear Grp., 639 F.3d 949, 955 (9th Cir. 2011). It
would not be arbitrary and capricious for the Service to determine that
applicants who have legal status and are already employed in the United States
should be held to stricter standards of regularity than, say, asylum seekers
applying from refugee camps. Thus, even if Mutasa had sufficiently pleaded
that the Service refused to apply the Vangala policy change to her, she would
still have failed to state a claim.
C. Efficiency
Finally, Mutasa argues that the Service’s practice of rejecting applicants
for minor errors in their paperwork is inefficient and therefore an abuse of its
discretion. (Am. Compl. ¶ 77.) The Amended Complaint also references a 2005
interoffice memo that instructed Service employees not to issue overly broad
Requests for Evidence, because doing so can result in unnecessary paperwork.
(Id. ¶ 76.) These allegations were presumably added to rebut the statements in
my prior opinion that the Service has efficiency interests in having applicants
fill out standardized forms completely. (DE 19 at 12.) The central point of my
reasoning in the prior opinion was that exceptions beget more exceptions,
potentially transforming a routine bureaucratic procedure into an inefficient
case-by-case adjudication—or so the Service could reasonably have thought.
Mutasa’s opinion that the Service’s practices are inefficient is not a sufficient
basis for me to determine that the rejection of her application was arbitrary
and capricious.
IV. CONCLUSION
For the reasons stated in my previous opinion (DE 19), supplemented by
those stated above, the Service’s motion to dismiss the Amended Complaint is
GRANTED. Because it appears that further attempts at amendment would be
futile, the dismissal is with prejudice.
A separate order will issue.
Dated: February 1, 2022
/s/ Kevin McNulty
___________________________________
Hon. Kevin McNulty
United States District Judge