Mukiawah v. United States Citizenship and Immigration Services

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Lashawna White Mukiawah,

et al.,

:

Plaintiffs

Case No. 2:21-cv-3540

v. Judge Sarah D. Morrison

Magistrate Chelsea M. Vascura

United States Citizenship and

Immigration Services, et al., :

Defendants.

OPINION AND ORDER

This matter is before the Court on the Motion to Dismiss filed by Defendants

United States Citizenship and Immigration Services (USCIS), et al. (ECF No. 25.)

Plaintiffs Lashawna White Mukiawah and Leonard Mukiawah responded to the

Motion (ECF No. 27), and Defendants replied. (ECF No. 32.) Defendants’ Motion is

ripe for decision.

I. BACKGROUND

This case arises out of USCIS’s 2018 denial of a Form I-130 Petition for Alien

Relative filed by Lashawna White Mukiawah on behalf of Leonard Mukiawah. (ECF

No. 1, Compl., ¶ 34.) Mr. Mukiawah is a native citizen of Cameroon; he married

Mrs. Mukiawah, a United States Citizen, in Columbus, Ohio in 2015. (Id., ¶¶ 3, 15.)

Mrs. Mukiawah then filed three I-130 Petitions with the USCIS to classify Mr.

Mukiawah as the spouse of a U.S. citizen. (Id., ¶¶ 16, 23, 25.) With the spousal

classification, Plaintiffs sought legal permanent resident status for Mr. Mukiawah

under § 201(a) of the Immigration and Nationality Act (INA). (Id.; 8 U.S.C.

§ 1151(a)(1).)

Prior to this marriage of the Mukiawahs, Mr. Mukiawah was married to

Kimberly Gray. (Id., ¶ 20.) During that marriage, Ms. Gray filed a Form I-130

Petition on Mr. Mukiawah’s behalf. (Id.) USCIS denied Ms. Gray’s petition,

determining that the marriage was fraudulent and for the purpose of evading the

immigration laws. (Id. ¶ 21; ECF No. 1-2, PageID 17–20.)

This prior fraudulent marriage with Ms. Gray bars Mr. Mukiawah from

receiving legal permanent resident status via a Form I-130 petition and was the

basis of USCIS’s denial of Mrs. Mukiawah’s I-130 Petitions.1 (ECF No. 1-2, PageID

17–20.) Mrs. Mukiawah’s third petition was denied in October 2018. (Compl., ¶ 34.)

Mrs. Mukiawah appealed the denial of her third I-130 Petition to the Board

of Immigration Appeals (BIA); the BIA affirmed USCIS’ findings and dismissed the

appeal in December 2020. (ECF No. 1-3, PageID 22–23.) The USCIS issued Mr.

Mukiawah a Notice to Appear (a notice initiating removal proceedings) one month

later. (Compl., ¶ 35.)

In March 2021, Mrs. Mukiawah filed a Motion to Reopen the BIA’s decision

based on evidence discovered after Ms. Gray’s death in 2020. (Id., ¶ 36; See,

8 C.F.R. §1003.2(c)(1) (“If new material facts come to light after a decision has been

1Section 204(c) of the INA, codified 8 U.S.C. § 1154(c), bars future approvals

of any I-130 Petition on behalf of a beneficiary when the beneficiary has previously

participated in a fraudulent marriage for the purpose of evading the immigration

laws.

made by the immigration judge, a party may file a motion with the issuing

authority to reopen the case.”).) Mrs. Mukiawah asserts that newly discovered

evidence supports a finding of a bona fide marriage between Mr. Mukiawah and Ms.

Gray, which would relieve the § 204(c) bar against Mr. Mukiawah receiving

permanent resident status as an alien relative pursuant to a Form-130. (Id., ¶¶ 26–

31.) That Motion to Reopen is currently pending before the BIA.

Plaintiffs then brought this suit alleging that the USCIS denial of Mrs.

Mukiawah’s I-130 Petition (presumably the third petition) and subsequent BIA

dismissal of her appeal violated the Administrative Procedures Act (APA) because

such actions were “arbitrary, capricious, an abuse of discretion, and not in

accordance with law,” and “not supported by substantial and probative evidence.”

(Id., ¶¶ 41, 50, 51 (citing 5 U.S.C. § 706(2)(A), (E).) Plaintiffs also claim that their

constitutional rights were violated by the I-130 denials. (Id., ¶¶ 54–61.) Plaintiffs

request that the Court (1) declare unlawful and set aside Defendants’ denial of Mrs.

Mukiawah’s I-130 Petition and (2) issue a writ of mandamus ordering the USCIS to

re-adjudicate and approve the Petition. (Id., ¶ 62A.)

Defendants bring this motion to dismiss arguing that the Court lacks

jurisdiction on grounds of judicial efficiency, in that the Plaintiffs should be

required to exhaust their Motion to Reopen with the BIA. (Mot., PageID 100.)

Defendants further assert Plaintiffs have failed to state a claim on which relief can

be granted because the USCIS decision denying Mrs. Mukiawah’s I-130 Petition

was in accordance with the law and regulations, was not arbitrary and capricious, is

supported by evidence in the record, and was not an abuse of discretion. (Id.,

PageID 99–100 n.1.)

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal when the court

lacks subject matter jurisdiction. Without subject matter jurisdiction, a federal

court lacks authority to hear a case. Thornton v. S.W. Detroit Hosp., 895 F.2d 1131,

1133 (6th Cir. 1990). Motions to dismiss for lack of subject matter jurisdiction fall

into two general categories: facial attacks and factual attacks. United States v.

Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack under Rule 12(b)(1)

“questions merely the sufficiency of the pleading[,]” and the trial court therefore

takes the allegations of the complaint as true. Wayside Church v. Van Buren Cty.,

847 F.3d 812, 816 (6th Cir. 2017) (internal quotations omitted). To survive a facial

attack, the complaint must contain a short and plain statement of the grounds for

jurisdiction. Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016). A

factual attack is a challenge to the factual existence of subject matter jurisdiction.

No presumptive truthfulness applies to the factual allegations. Glob. Tech., Inc. v.

Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015). This

case involves the former.

When subject matter jurisdiction is challenged, “the plaintiff has the burden

of proving jurisdiction in order to survive the motion.” Moir v. Greater Cleveland

Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990); Roulhac v. Sw. Reg’l Transit

Auth., No. 07CV408, 2008 WL 920354, at *2 (S.D. Ohio Mar. 31, 2008).

Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim

with sufficient specificity to “give the defendant fair notice of what the . . . claim is

and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (internal quotations omitted). A complaint that falls short of the Rule 8(a)

standard may be dismissed if it fails to state a claim upon which relief can be

granted. Fed. R. Civ. P. 12(b)(6).

To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is

plausible on its face. A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. The

plausibility standard is not akin to a probability requirement, but it asks

for more than a sheer possibility that a defendant has acted unlawfully.

Where a complaint pleads facts that are merely consistent with a

defendant’s liability, it stops short of the line between possibility and

plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations

omitted). The complaint need not contain detailed factual allegations, but it must

include more than labels, conclusions, and formulaic recitations of the elements of a

cause of action. Directv, Inc. v. Treesh, 487 F.3d, 471, 476 (6th Cir. 2007).

“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550

U.S. at 555).

III. ANALYSIS

A. Plaintiffs are not required to exhaust their administrative

remedies here.

Defendants ask the Court to dismiss Plaintiffs’ claims for lack of subject

matter jurisdiction because Plaintiffs have not exhausted the available

administrative remedies prior to bringing their claims to court. Specifically,

Defendants ask the Court to decline to exercise jurisdiction under the doctrine of

prudential exhaustion. (Mot., PageID 101–04.)

Exhaustion of administrative remedies generally requires a party seek all

possible relief within an agency’s remedial scheme before seeking judicial relief in

federal court. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50–51 (1938);

McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992). The law governing exhaustion

in the context of APA claims differs from exhaustion elsewhere. Bangura v. Hansen,

434 F.3d 487, 498 (6th Cir. 2006). In claims brought under the APA, a plaintiff is

required to exhaust only the administrative remedies that are mandated by statute

or regulation. Darby v. Cisneros, 509 U.S. 137, 153–54 (1993). The INA and its

implementing regulations do not require a plaintiff challenging the denial of an I-

130 Petition to exhaust his administrative remedies prior to bringing claims in

federal district court. Bangura, 434 F.3d at 494, 498; see 8 § C.F.R. 103.3(a)(1)(ii)

(providing that a petitioner “may” appeal to the BIA).

Prudential exhaustion is a judge-made doctrine that enables courts to require

administrative exhaustion even where the statute or regulations do not. Island

Creek Coal Co. v. Bryan, 937 F.3d 738, 747 (6th Cir. 2019); see also McCarthy v.

Madigan, 503 U.S. 140, 144 (1992). Because of the lack of textual underpinning, the

Sixth Circuit recognized recently that the “atextual nature of [the] doctrine leaves it

on somewhat shaky footing,” Joseph Forrester Trucking, 987 F.3d 581, 588, and that

its use rests primarily on policy grounds “unmoored” from statutes’ text and

structure. Bryan, 937 F.3d at 749. The Appeals Court’s skepticism is consistent with

the longstanding principal that courts have “no more a right to decline the exercise

of jurisdiction which is given, than to usurp that which is not given.” Id. at 749

(citing Cohens v. Virginia, 19 U.S. 264, 404, 6 Wheat. 264, 5 L.Ed. 257 (1821)).

However, it is not the prudential exhaustion doctrine’s foundations that

preclude its application here. The APA itself “does not allow courts to require

administrative exhaustion in the absence of a statute or regulation requiring it,”

Star Way Lines v. Walsh, 2022 WL 971884, at *6 (N.D. Ill. Mar. 31, 2022), and has,

“by its very terms. . . . limited the availability of the doctrine of exhaustion. . . . to

that which [a] statute or rule clearly mandates.” Id. (citing Darby, 509 U.S. 137, 146

(1993)). Here, neither the INA nor its implementing regulations require Plaintiffs to

file a motion to reopen nor to wait for its adjudication once filed. Thus, the APA

precludes the Court’s use of prudential exhaustion to decline subject matter

jurisdiction.

Accordingly, Defendants’ motion to dismiss for lack of subject matter

jurisdiction is DENIED.

B. Plaintiffs fail to state a claim under the APA because the relevant

agency action is non-final.

Defendants also move to dismiss the Complaint on the grounds that Plaintiffs

failed to allege sufficient supporting facts and that the record shows the I-130

denial was supported by substantial evidence. (Mot., PageID 99–100 n.1.) However,

the Court need not reach the merits of these arguments because the action of the

BIA is non-final.

While Defendants cannot prevail on their challenge to this Court’s

jurisdiction based on Mrs. Mukiawah’s Motion to Reopen, the Motion to Reopen is

nonetheless fatal to Plaintiffs’ APA claims because its filing rendered an otherwise

final decision non-final.

To state a claim for relief under the APA, a plaintiff must allege that his

injury stems from a final agency action for which there is no other adequate remedy

in court. 5 U.S.C. § 704; Bangura, 434 F.3d at 500. An action is final where it:

(1) marks the “consummation of the agency’s decision-making process; and

(2) determines rights and obligations or occasions legal consequences.” Id. at 500–01

(citing Bennett v. Spear, 520 U.S. 154, 177–78 (1997)). The APA defines final agency

action to include:

agency action otherwise final ... whether or not there has been

presented or determined an application for ... any form of

reconsideration, or, unless the agency otherwise requires by rule and

provides that the action meanwhile is inoperative, for an appeal to

superior agency authority.

5 U.S.C. § 704.

In the context of a motion to reconsider filed with an administrative agency,

courts interpret § 704 to “relieve parties from the requirement of petitioning for a

rehearing before seeking judicial review . . . but not to prevent petitions for

reconsideration that are actually filed from rendering the orders under

reconsideration non final.” Bangura, 434 F.3d at 501 (citing Interstate Com. Com’n

v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 284–85 (1987); see also Berry v.

U.S. Dep’t of Labor, 832 F.3d 627, 636 (6th Cir. 2016) (noting that “[n]othing in

BLE’s rationale indicates that its holding was limited to ICC proceedings . . . other

circuits have [applied BLE’s holding] in a variety of administrative contexts.”).

Accordingly, “a motion for reconsideration renders an agency action nonfinal

under. . . . the APA.” Acura of Bellevue v. Reich, 90 F.3d 1403, 1407 (9th Cir. 1996).

This rationale also applies to motions to reopen because, similarly, the “initial

agency decision may be modified or reversed in both types of administrative

review.” See id. at 1407–08.

Thus, when a party seeks optional review of an otherwise final agency action,

as Mrs. Mukiawah did here with her Motion to Reopen, it renders the agency’s

decision non-final. As such, federal review of Plaintiffs’ APA claims is precluded. See

id; Bellsouth Corp. v. F.C.C., 17 F.3d 1487, 1489 (D.C. Cir. 1994) (“[A] party that

stays before an agency to seek reconsideration of an order cannot at the same time

appear before a court to seek review of that same order, any more than the party

could literally be in two places at the same time. Or from another perspective, an

agency action cannot be considered non-final for one purpose and final for

another.”); see also Hanif v. Dep’t of Homeland Sec., 472 F. Supp. 2d 914, 921 (E.D.

Mich. 2007) (“[W]here an optional appeal has been taken, the pending appeal

renders the decision non-final.” (quotation marks omitted)).

Both parties rely on Stone v. I.N.S. (514 U.S. 386 (1995)) in their arguments

regarding finality. The Stone court reviewed the effect of a motion for

reconsideration on the finality of a final order of removal. The Court found that

such motions did not affect the finality of an order for removal, relying exclusively

on 8 U.S.C. § 1252(b)(6) (previously 8 U.S.C. 1105a(a)(6)); Section 1252 requires a

motion to reconsider a final order of removal be consolidated with the underlying

order for purposes of review. § 1252(b)(6) (“When a petitioner seeks review of an

order under this section, any review sought of a motion to reopen or reconsider the

order shall be consolidated with the review of the [removal] order”). This

consolidation, therefore, reflects a statutory intent that the finality of the order of

removal is not affected by a subsequent motion to reconsider. 514 U.S. 386, 405–06

(1995) (“The consolidation provision . . . reflects Congress’ understanding that a

deportation order is final, and reviewable, when issued. Its finality is not affected by

the subsequent filing of a motion to reconsider.”); see also Gor v. Holder, 607 F.3d

180, 185 (6th Cir. 2010). 8 U.S.C. §1252 deals exclusively with judicial review of

final orders of removal and is inapplicable to a denial of an I-130 Petition. The

statute governing I-130 petitions does not contain a consolidation provision – this

omission in the I-130 context indicates that Congress did not intend for reviewing

courts to apply the same finality analysis in both situations. Thus, the Stone

holding does not save the finality of Mrs. Mukiawah’s I-130 petition denial.

Plaintiffs express concern that their efforts to reopen the BIA’s denial of Mrs.

Mukiawah’s I-130 Petition are futile, and that the BIA is likely to deny the motion.

But Plaintiffs voluntarily chose to file a motion to reopen with the BIA as their

avenue for relief, and futility “does not excuse the need for final agency action”

preceding a federal district court’s review. Naik v. Renaud, 947 F. Supp. 2d 464,

471–72 (D. N.J. 2013), aff’d sub nom. Naik v. Dir. U.S. Citizenship & Immigr. Servs.

Vermont, 575 F. App’x 88 (3d Cir. 2014). If the administrative process returns an

unfavorable result notwithstanding the new evidence presented in Plaintiff’s

Motion to Reopen, Plaintiffs are free to contest that final decision in federal court.

Berry v. United States Dep’t of Labor, 832 F.3d 627, 636 (6th Cir. 2016) (“If the

petition that was denied sought reopening on the basis of new evidence or changed

circumstances, review is available and abuse of discretion is the standard.”)

(citation omitted)). For now, however, Plaintiffs have failed to state claims on which

the Court can grant relief under the APA.

The Sixth Circuit has historically dismissed cases for failure to state a claim

when there is no finality. Jama v. DHS, 760 F.3d 490, 494 n.4 (6th Cir. 2014);

Bangura 434 F.3d at 500 (“To state a claim for relief under the APA, a plaintiff

must allege that his or her injury stems from a final agency action for which there is

no other adequate remedy in court.” (citations omitted)).

Accordingly, Plaintiffs fail to state a claim under the APA and the Court

GRANTS Defendants’ Motion to Dismiss.

IV. CONCLUSION

For the reasons stated above, Defendants’ Motion to Dismiss (ECF No. 25) is

GRANTED. The Clerk is DIRECTED to TERMINATE this case from the docket

of the United States District Court for the Southern District of Ohio.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE