Simaga,et al. v. United States Citizenship & Immigration Services

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ARABIATU SIMAGA, et al., :

: Case No. 2:21-cv-5098

Plaintiffs, :

: Chief Judge Algenon L. Marbley

v. :

: Magistrate Judge Kimberly A. Jolson

:

UNITED STATES CITIZENSHIP :

& IMMIGRATION SERVICES, et al., :

:

Defendants. :

OPINION & ORDER

This matter is before this Court on Defendants’ Partial Motion to Dismiss. (ECF No. 11).

Given the following analysis, Defendants’ Motion is GRANTED.

I. BACKGROUND1

In May 2009, Plaintiff Yusuph Karaga, a Gambian citizen and national, married his first

wife Ms. Rokia Touray, a United States Citizen. (ECF No. 1 at ¶ 16). Following their marriage,

Ms. Touray filed a Form I-130 Petition for Alien Relative (“I-130 Petition), on behalf of Mr.

Karaga, which was approved. (Id.). While Mr. Karaga was admitted to the U.S. as a permanent

resident on a conditional basis, the two divorced in March 2013. (Id., ¶ 19). In October of that

year, Mr. Karaga married Arabiatu Simaga, a U.S. Citizen residing in Ohio. (Id., ¶¶ 1, 8).

On April 28, 2014, the U.S. Citizenship and Immigration Services (“USCIS”) issued a

notice that Mr. Karaga’s conditional resident status would be terminated for failing to file an I-751

Petition to Remove Conditions on Residence (“I-175 Petition”) as required under statute. (Id., ¶

21). Thereafter, pursuant to 8 U.S.C. § 1186a(c)(4), Mr. Karaga filed an I-751 Petition requesting

1 As Defendants’ Motion to Dismiss seeks only partial dismissal, this Court confines its recitation of the background

facts to those pertinent to the claims Defendants seek to dismiss.

a waiver of the joint filing requirement, on the asserted basis that he entered into the marriage with

Ms. Touray in good faith, but the marriage was terminated through divorce or annulment. (ECF

No. 1-2 at 1). After an interview with Mr. Karaga, USCIS issued a Notice of Intent to Terminate

Status (“NOIT”). (Id., ¶¶ 30–31). Mr. Karaga responded to the NOIT, however, USCIS denied his

I-751 Petition, concluding that he did not establish that his marriage to Ms. Touray was entered in

good faith and thus did not establish eligibility for a waiver of the statutory requirements for the

filing of a Joint Petition. (Id., ¶ 34).

Last year, the U.S. Department of Homeland Security (“DHS”) initiated removal

proceedings against Mr. Karaga, which here moved to terminate on the ground that the notice

issued by DHS was deficient. (ECF No. 11-2 at 2). That motion was granted, and the removal

proceedings were terminated without prejudice on October 27, 2021. (Id. at 10). Notably, the

Immigration Judge stated that their “decision [did] not preclude [DHS] from properly commencing

proceedings pursuant to the issuance of a new notice to appear in compliance with the statutory

requirements[.]” (Id.). DHS appealed that decision to the Board of Immigration Appeals (“BIA”),

which, at the time of filing, remained ongoing. (ECF No. 11 at 4).

On October 21, 2021, Plaintiffs filed suit against the federal agencies involved in the denial

of Mr. Karaga’s I-175 and I-130 Petitions.2 (ECF No. 1). Plaintiffs allege this Court has jurisdiction

over their claims pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 2201; 28 U.S.C. § 1361 as well as the

Administrative Procedures Act (“APA”). (Id., ¶ 7). As relevant to Mr. Karaga’s I-175 Petition,

Plaintiffs allege that USCIS’s denial of the petition “violated the governing statute and regulations,

[was] arbitrary and capricious, an abuse of discretion, and not otherwise in accordance with the

law.” (Id., ¶ 46). Plaintiffs further allege that the denial was contrary to the evidence before USCIS

2 Defendants do not seek dismissal of the claims involving Mr. Karaga’s I-130 Petition. (See ECF No. 11 at 2, n. 1).

as well as USCIS’s own regulations and binding BIA precedent. (Id., ¶¶ 47, 48). Plaintiffs seek

declaratory relief as well as attorney’s fees and costs. (Id., ¶¶ A–L).

On January 28, 2022, Defendants answered Plaintiffs’ Complaint in part (ECF No. 10) and

moved to dismiss Plaintiffs’ claims regarding Mr. Karaga’s I-175 Petition (ECF No. 11). Plaintiffs

did not respond to Defendants’ Motion to Dismiss, and the time for doing so has long since passed.

As such, this Court will consider Defendants’ Motion unopposed.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) provides that a defendant may move to dismiss

based on a court’s lack of jurisdiction over the subject matter of the case. Jurisdiction in the federal

courts is limited: it may be based on a federal question, which is one “arising under the

Constitution, laws, or treaties of the United States,” or on diversity of citizenship where the sum

in controversy exceeds $75,000. 28 U.S.C. §§ 1331, 1332. The plaintiff has the burden of proving

subject matter jurisdiction when it is challenged under Rule 12(b)(1). Rogers v. Stratton Indus.,

798 F.2d 913, 915 (6th Cir. 1986). Where a motion to dismiss presents alternative arguments, such

as improper venue or failure to state a claim, the court must address subject matter jurisdiction

first. City of Heath v. Ashland Oil, Inc., 834 F. Supp. 971, 975 (S.D. Ohio 1993).

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim upon which relief can be granted “is a test of the plaintiff’s cause of action as stated in the

complaint, not a challenge to the plaintiff’s factual allegations.” Golden v. City of Columbus, 404

F.3d 950, 958–59 (6th Cir. 2005). When evaluating such a motion, “[a]ll factual allegations in the

complaint must be presumed to be true, and reasonable inferences must be made in favor of the

non-moving party.” Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield,

552 F.3d 430, 434 (6th Cir. 2008). But the court need not accept unwarranted factual inferences.

Id. Complaints must state “more than a bare assertion of legal conclusions to survive a motion to

dismiss.” Horn v. Husqvarna Consumer Outdoor Products N.A., Inc., 2013 WL 693119, at *1

(S.D. Ohio Feb. 26, 2013) (internal citations omitted). A plaintiff’s “[f]actual allegations must be

enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). The claim to relief must be “‘plausible on its face,’” with “factual content that

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) (quoting Twombly, 550 U.S. at 570).

III. LAW AND ANALYSIS

Defendants offer two arguments as to why dismissal of Plaintiffs’ claims relating to Mr.

Karaga’s I-175 Petition is appropriate. (See generally ECF No. 11). First, Defendants argue that

this Court lacks jurisdiction to review USCIS’s I-751 decision under the APA because the decision

is not a final agency action. (Id. at 7–12). Defendants maintain this is so because “further

administrative relief is available” as Mr. Karaga will be placed in removal proceedings and may

seek review of the I-175 Petition denial there. (Id. at 8–9). Moreover, Defendants assert that there

exists no separate statute authorizing a district court to review an I-175 Petition, which could confer

jurisdiction. (Id.). Similarly, Defendants argues that because there is no final agency action,

Plaintiffs cannot state a claim for relief, pursuant to Fed. R. Civ. P. 12(b)(6). (Id. at 11). Second,

in the alternative, Defendants argue that there is no subject-matter jurisdiction over Mr. Karaga’s

claim because the denial of his I-175 Petition is a discretionary determination and precluded by 8

U.S.C. § 1252(a)(2)(B)(ii). (Id. at 12–13). Here, Defendants emphasize that the administrative

provisions governing the consideration of an I-175 Petition explicitly state that the decision is in

the sole discretion of the Secretary of DHS. (Id. at 13).

Before this Court delves into Defendants’ Motion, it first addresses a preliminary matter

regarding the consideration of evidence. Generally, a Court may only consider the Complaint, and

documents attached thereto, when ruling on a motion to dismiss. Commercial Money Ctr., Inc. v.

Ill. Union Ins. Co., 508 F.3d 327, 335 (6th Cir. 2007) (citing Fed. R. Civ. P. 10(c)). Furthermore,

where “a document is referred to in the pleadings and is integral to the claims, it may be considered

without converting a motion to dismiss into one for summary judgment.” Id. at 335–36; Young v.

Int’l Union, 148 F. Supp. 3d 602, 611 (E.D. Mich. 2015). Upon review of the materials relied on

by Defendants in their Motion, this Court finds that they are sufficiently central to Plaintiffs’

claims, that the Court may consider them without converting Defendant’s motion to one for

summary judgment.

While Defendants rely on Fed. R. Civ. P. 12(b)(1) for dismissal, that reliance is misplaced.

As the Sixth Circuit has made clear, “[t]he APA is not a jurisdiction-conferring statute; it does not

directly grant subject matter jurisdiction to the federal courts.” Jama v. Dep’t of Homeland Sec.,

760 F.3d 490, 494 (6th Cir. 2014). Despite this, “the federal question statute, 28 U.S.C. § 1331,

‘confer[s] jurisdiction on federal courts to review agency action, regardless of whether the APA

of its own force may serve as a jurisdictional predicate.’” Id (quoting Califano v. Sanders, 430

U.S. 99, 105 (1977)). Here, because Plaintiffs cite 28 U.S.C. § 1331 as a basis for jurisdiction (see

ECF No. 1 at ¶ 7) this Court has jurisdiction over Plaintiffs’ claims relating to the denial of Mr.

Karaga’s I-175 Petition. As such, dismissal pursuant to 12(b)(1) would be improper. Jama, 760

F.3d at 494, n. 4 (“Because the APA does not confer jurisdiction, elements of a claim under the

APA, including the final agency action requirement, are not jurisdictional. . . Accordingly, we

address the final agency action requirement . . . where we consider whether [plaintiff] has a valid

cause of action for his claims against Defendants.”) Having established subject matter jurisdiction

over this claim, this Court addresses whether Plaintiffs have stated a claim on the merits.

In order to state a claim under the APA, Plaintiffs “must allege that [their] injury stems

from a final agency action for which there is no other adequate remedy in court.” Bangura v.

Hansen, 434 F.3d 487, 500 (6th Cir. 2006). To constitute “final agency action,” an agency’s action

must “mark the consummation of the agency’s decision-making process . . . [and] must not be of

a tentative or interlocutory nature;” in addition, “the action must be one by which rights or

obligations have been determined, or from which legal consequences will flow.” Air Brake

Systems, Inc. v. Mineta, 357 F.3d 632, 638 (6th Cir. 2004); see also Franklin v. Massachusetts,

505 U.S. 788, 797 (1992) (“The core question is whether the agency has completed its decision-

making process, and whether the result of that process is one that will directly affect the parties.”).

Upon review of the applicable administrative guidance, this Court finds that the denial of Mr.

Karaga’s I-175 Petition does not constitute “final agency action.”

The relevant regulation, 8 CFR § 216.4(d)(2), make clear that following the denial of an I-

175 Petition, the petitioner “may seek review of the decision in removal proceedings.” During

those proceedings, “the burden of proof shall be on the Service to establish, by a preponderance of

the evidence, that the facts and information set forth by the petitioners are not true or that the

petition was properly denied.” 8 CFR § 216.4(d)(2). Given this, and because Mr. Karaga has yet

to have his removal proceeding, the denial of his I-175 Petition was not the “consummation of the

agency’s decision-making process.” Air Brake Systems, 357 F.3d at 638. In making this finding,

this Court finds convincing the holdings of several district courts, which have found that a USCIS

denial of an I-751 petition is not a final agency action, given the availability of administrative

review in a removal proceeding. See Barbur v. USCIS, 2013 WL 3285490, *3 (D. Nev. June 26,

2013) (holding that the administrative process was not yet final, where Plaintiff would be “entitled

to de novo review” during removal proceedings); cf. Bhadmus v. United States Citizenship &

Immigr. Servs., 2016 WL 5946842, *3 (S.D. Ind. Sept. 30, 2016) (granting motion to dismiss

challenge to I-751 denial because “the immigration judge presiding over [the] removal proceedings

will have authority to modify or reverse the denial of the I-751 petition”); Liu v. Mukasey, 2008

WL 1744626, *3 (W.D. Wash. Apr. 11, 2008) (denying mandamus relief because plaintiff had not

exhausted his challenge to USCIS’s denial of his I-751 petition in pending removal proceedings).

Accordingly, because the denial of Mr. Karaga’s I-175 Petition does not constitute final

agency action, Plaintiffs have failed to state a claim upon which relief can be granted. Jama, 760

F.3d at 497. Defendants’ Motion (ECF No. 11) is hereby GRANTED.

IV. CONCLUSION

Pursuant to the foregoing analysis, Defendants’ Motion (ECF No. 11) is GRANTED.

Plaintiffs’ claims relating to the denial of Mr. Karaga’s J-175 Petition are hereby DISMISSED,

and this case shall proceed on Plaintiffs’ remaining claims.

IT IS SO ORDERED.

CHIEF UNITED STATES DISTRICT JUDGE

DATED: September 12, 2022