The opinion
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT nit □□□□ Cer
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ANASTASIIA ERMURAKI and §
AUREL ERMURAKI, §
Plaintiffs, §
V. CIVIL ACTION NO. 4:19-CV-4169
KENNETH CUCCINELLL, et al., :
Defendants. §
ORDER
1. Background
The Defendants in this matter are officials with the United States Department of Homeland
Security (“DHS”) and/or the United States Citizenship and Immigration Service (“USCIS”) and
will be collectively referred to as “the Government” or “Defendants.” The Plaintiffs Aurel and
Anastasiia Ermuraki (hereinafter referred to collectively as “Plaintiffs” or individually by first
name) are husband and wife. The former is a native of Moldova and the latter is a native of Russia.
They came to the United States on July 21, 2016 by virtue of six-month B-2 tourist visas. Their
visas expired on January 20, 2017. Three days before the expiration of his visa, Aurel filed an
asylum petition (Form 1-589) with USCIS. Anastasiia applied as a derivative applicant. USCIS
acknowledged receipt of the petition the next day. These applications remain pending.
Later Anastasiia applied for a diversity visa program for fiscal year 2019 (October 1, 2018-
September 30, 2019). This time Aurel’s application was derivative of her application. This
program allows up to 55,000 immigrants (5,000 of whom must be from Nicaragua) to be selected
randomly. 8 U.S.C. § 1153(e)(2). The Department of State received over 14 million applications
for those 50,000 slots.
In order to whittle down the number of applicants, the Department of State randomly
selected 87,610 individuals who were then invited to apply for diversity visas. If they did not
qualify or were not chosen, then there was no additional benefit from the fact that they applied.
In May of 2018, Anastasiia was informed she had been randomly selected to apply.
Importantly, she was not awarded the visa itself, but only allowed the right to apply. Anastasiia
applied by filing a Form 1-485. She was interviewed in March of 2019, and in April she was
rejected because she failed to meet two criteria. First, she was not in a lawful immigration status
at the time she applied. Second, she had not maintained lawful immigration status since entering
the United States. By this time, Anastasiia had overstayed her tourist visa by over two years and
had not maintained lawful status since the expiration of her tourist visa in January of 2017. Due to
the fact that Anastasiia did not qualify for a diversity visa, her application was rejected, and Aurel’s.
derivative application was consequently rejected (although it seems clear that had he directly
applied he would have been rejected for the same two reasons). Both Plaintiffs filed Motions to
Reconsider, and both were denied. No attempt to date has been made to remove the Plaintiffs and,
as noted above, their asylum applications are still pending.
Plaintiffs filed this lawsuit in October of 2019—after the Government’s fiscal year ended
on September 30, 2019.! Prior to the Government answering, the Plaintiffs filed what they entitled
a Verified Complaint for Injunctive and Declaratory Relief. (Doc. No. 15). The Government
responded to this Complaint by filing a Motion to Dismiss (Doc. No. 20), Plaintiffs have responded
(Doc. No. 21), and the Government has replied (Doc. No. 22). It is this motion that the Court
addresses here.
! The Government claims this Court could dismiss this case as moot because the diversity visa numbers are no longer
available. 22 C.F.R. § 42.33(f). Defendants reason that since all of the 2019 numbers have been allocated and the
Government is now into fiscal year 2020, there is no relief for this Court to grant. The Court need not rule on this basis
as it finds the Government’s position on the substantive issues to be meritorious.
Il. Procedural Standards
A defendant may file a motion to dismiss a complaint under Federal Rule of Civil
Procedure 12(b)(6) for “failure to state a claim upon which relief may be granted.” FED. R. CIv.
P. 12(b)(6). To defeat a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “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.” Ashcroft v. Igbal, 556 U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556). “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.” Jd (quoting Twombly, 550 U.S. at 556).
“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.’” Jd (quoting
Twombly, 550 U.S. at 557).
In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the
complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm
Mut. Auto. Ins. Co., 509 F.3d 673, 675 (Sth Cir. 2007). The court is not bound to accept legal
conclusions as true, and only a complaint that states a plausible claim for relief survives a motion
to dismiss. /gbal, 556 U.S. at 678-79. When there are well-pleaded factual allegations, the court
assumes their veracity and then determines whether they plausibly give rise to an entitlement to
relief. Jd. The court may also consider documents that a defendant attaches to a motion to dismiss,
if the documents are “referred to in the plaintiff's complaint and are central to [the] claim.” Collins
v. Morgan Stanley Dean Witter, 224 F.3d 496, 500 (Sth Cir. 2000); see also Johnson v. Wells
Fargo Bank, NA, 999 F. Supp. 2d 919, 926 (N.D. Tex. 2014) (Lynn, J.).
Plaintiffs basically contend that they should be entitled to legal permanent residency status
and they request that this Court order the Defendants to approve their applications and grant them
that status. The alleged basis for this relief is that they claim under the Administrative Procedures
Act, 5 U.S.C. § 701 et seq., that the Defendants’ actions in refusing to grant them diversity status
were “arbitrary, capricious, an abuse of discretion, and not in accordance with law.” (Doc. No.
15 at 14). See also 5 U.S.C. § 706(2)(A).
The scope of review under the arbitrary and capricious standard is basic. An agency must
examine the relevant data and articulate a satisfactory explanation for its action, including a
rational connection between the facts found and choices made. Stated differently, an agency acts
in an arbitrary and capricious manner if it relies on factors which Congress has not intended that
it consider, entirely fails to consider an important aspect of the problem, offers an explanation that
runs counter to the evidence, or if its decision is so implausible that it cannot be explained as being
based upon the agency’s expertise. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). The party challenging the decision has the burden of proof.
II. Discussion
Title 8 Section 1255 is the pertinent statute* which governs the adjustment of status from
an applicant to one of legal permanent residence. Significantly, it has certain requirements for one
to gain permanent residence status. Two of these provisions are relevant to this case. They bar an
adjustment of status for an alien:
e who is in unlawful immigration status on the date of filing the application for
adjustment of status (the “unlawful immigration status bar’); or
? The applicable regulation is 8 C.F.R. § 245.1, which states: “The following categories of aliens are ineligible to apply
for adjustment of status to that of a lawful permanent resident . . . (5) any alien who on or after November 6, 1986 is
not in lawful immigration status on the date of filing his or her application for adjustment of status . . . (6) any alien
who files an application for adjustment of status on or after November 6, 1986, who has failed (other than through no
ut his or her own or for technical reasons) to maintain continuously a lawful status since entry into the United
e who has failed (other than through no fault of his own or for technical reasons) to
maintain continuously a lawful status since entry into the United States (the “failure to
maintain lawful status bar”).
8 U.S.C. § 1255(c)(2) (emphasis added).
One point is quite significant to the outcome of this case—if an alien falls within any one
or more of the categories listed in § 1255(c)(2), he or she is ineligible for adjustment of status. Id.
Anastasiia was barred from attempting to adjust her status pursuant to the diversity lottery because
she had no lawful immigration status on the date she filed. She was also barred because she had
failed to continuously maintain a lawful entry status since entry into the United States. Either
reason was sufficient to deny her claim.
The reason the Court emphasizes the independence of these two clauses is that the Plaintiffs
expend most of the briefing on the motion to dismiss attacking the Government’s interpretation of
the clause “other than through no fault of his own or for technical reasons.” This clause modifies
the failure to maintain lawful status bar. It does not apply at all to the unlawful immigration status
. on the date of filing bar.
The Plaintiffs entered the United States on tourist visas. A few days before the visas
expired, Aurel applied for asylum with Anastasiia applying derivative of his application. Those
applications are still pending and are not at issue here. Nevertheless, after their tourist visas
expired, the Plaintiffs had no lawful immigration status. Consequently, the Plaintiffs do not have
lawful status and, more importantly, did not have lawful immigration status when the diversity
application was filed.
3 A third provision disqualifies those who have participated in unauthorized employment activities. See 8 U.S.C.
§ 1255(c)@2). There is no claim that the unauthorized employment provision has any relevance here, and therefore it
will not be addressed.
In this lawsuit, Plaintiffs do not make a cogent argument why this factor in and of itself
does not completely dispose of this case. Instead, they just ignore/deny the existence of unlawful
immigration status bar and concentrate on their own interpretation of § 1255(c)(2). This omission
is not one the Court can make because it is not one the Government made. The Government clearly
set out in its original denial letter, as well as its letter denying Anastasiia’s Motion to Reopen, that
one of the reasons for denying her application was she had no lawful immigration status. For
convenience the Court quotes only the latter:
The INA 245(c)(2) bar requires that you be in lawful immigration status on the date
of filing form I-485 and that you have maintained lawful status since each of your
entries into the United States. INA 245(c)(2) states in pertinent part that any alien
“who is in unlawful immigration status on the date of filing the application for
adjustment of status or who has failed (other than through no fault of his own or
- for technical reasons) to maintain continuously a lawful status since entry into the
United States” is barred from adjusting status under INA 245(a).
DHS’s regulations at 8 CFS 245.1(d)(1) (and the corresponding Executive
Office for Immigration Review (EOIR) regulations at 8 CFR 1245.1(d)(1)) define
“lawful immigration status” for purposes of INA 245(c)(2), as limited to six
categories: (i) lawful permanent residents; (i1) nonimmigrants in valid unexpired
status; (iii) refugees; (iv) asylees; (v) parolees in valid unexpired status; and (vi)
aliens eligible for the benefits of Public Law 101-238 (the Immigration Nursing
Relief Act of 1989) who filed an adjustment application on or before October 17,
1991.
This definition clearly excludes applicants for asylum (not those who have
been granted refugee or asylee status within the scope of the INA). This definition
of “lawful immigration status” is clear, specific, and absolute in the context of INA
245(c)(2). You have no legal basis for a claim that filing your asylum application
prior to the expiration of your nonimmigrant status results in an effective extension
of that lawful nonimmigrant status.
(Doc. No. 15, Ex. 1 at 2-3; see also Ex. B at 7-13) (emphasis added).
Clearly neither plaintiff held lawful immigration status on the date that the diversity
application was filed and it was rightly denied.
The Plaintiffs’ arguments to this Court concentrate on the interpretation of the excusal
language of the failure to maintain lawful status bar—the language that states “other than through
no fault of his own or for technical reasons.” As the Court has noted, this language—assuming
hypothetically that the Plaintiffs qualified under it—does not appear in the unlawful immigration
status at the time of filing bar. Consequently, even if their non-compliance with respect to their
failure to maintain continuous legal status was excused, it could not be excused for their failure to
have the appropriate status when the applications were filed. This finding, in and of itself, resolves
this case. □
The Court, nonetheless, will address the Plaintiffs’ argument that their noncompliance to
the failure to maintain lawful status bar was excused. The Plaintiffs argue that “inaction” by
USCIS on their asylum claims is the reason they lacked lawful status and were unable to maintain
continuous lawful status. Defendants point out the permitted technical reasons set out in the Code
of Federal Regulations all are minor procedural glitches or they cover situations where an applicant
was prevented with compliance due to incapacity. 8 C.F.R. § 245.1(d)(2).
Plaintiffs’ interpretation is unreasonable. It would put all of the burden on the Defendants
for Plaintiffs’ own non-compliance. Moreover, it is the equivalent of converting the mere filing of
an asylum application into de facto legal status. Such a result was not intended by Congress, not
supported by the statutory and regulatory language, or by. common sense.
This Court need not look far to find support for the proposition that the Government acted
appropriately in the handling of this matter. In Kavafoglu v. Nielson, 18-CV-3512 (S.D. Tex., Jan.
11, 2019), Judge Hoyt faced a similar case and made a similar decision. His concise legal
conclusions are appropriate here as well:
In order for the plaintiffs to prevail on their claim, they must establish that the _
decision of the USCIS was “arbitrary, capricious, an abuse of discretion, or .
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Sierra Club v.
Peterson, 185 F.3d 349, 368 (Sth Cir. 1999), on reh’g en banc, 228 F.3d 559 (5th
Cir. 2000) (“[D]e novo review of agency adjudications has virtually ceased to exist.
In its stead, the ‘arbitrary and capricious’ standard of review of 5 U.S.C.
§ 706(2)(A) is now applied to review of agency determinations in the adjudicatory
setting.”). “The scope of review under the ‘arbitrary and capricious’ standard is
narrow and a court is not to substitute its judgment for that of the agency.” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983). “Nevertheless, the agency must examine the relevant data and articulate
a satisfactory explanation for its action including a ‘rational connection between
the facts found and the choice made.’” Jd. (quoting Burlington Truck Lines v.
United States, 371 U.S. 156, 168 (1962)). This Court is of the opinion that the
USCIS’s decision with regard to the matter sub judice was not arbitrary, capricious,
an abuse of discretion or violative of the law. The Court’s rationale for its
conclusion is set forth below.
First, the plaintiffs did not have “lawful” immigration status on August 10,
2018—the day that they submitted their application for adjustment of status. See
8 C.F.R. § 245.1(d)(1). It is undisputed that the plaintiffs’ last “lawful” immigration
status was that of a “non-immigrant visitor” from April 23, 2016, through October
22, 2016. Notwithstanding the aforementioned, the plaintiffs failed to request or
obtain any new, lawful status or maintain their pre-existing B-1/B-2 visitor visas
prior to their respective expiration dates. Although the record reflects that an
asylum application was filed on July 1, 2016, which encompassed the entire family,
the plaintiffs mere filing of that application, without more, did not create or
establish any new, “lawful” status on their behalf. See Dhuka v. Holder, 716 F.3d
149, 156 (Sth Cir. 2013).
The Seventh Circuit has also addressed this circumstance. In Chandhry v.
Holder, the Seventh Circuit explained that “unlawful presence” and “unlawful
status” are not synonymous concepts. See 705 F.3d 289, 292 (7th Cir. 2013).
Therefore, case law, as well as the statute and regulation, make it clear that the
plaintiffs were ineligible to file an application for adjustment of status on August
10, 2018, because they were not in a “lawful” immigration status at the time as
defined by § 1255(c)(2). Instead, pursuant to an exercise of discretion by an USCIS
official, they were granted permission to remain in the U.S. during the pendency of
their asylum application. The USCIS’s authorization in this regard does not equate
to a right protected by law during the pendency of their asylum application
sufficient to confer “lawful” immigration status. See Dhuka, 716 F.3d at 156.
(18-CV-3512, Doc. No. 19 at 5-6) (footnote omitted).
This Court finds the Plaintiffs never had lawful immigration status after the expiration of
their tourist visas, and as such they did not have that status when the diversity lottery application
was filed. Further, they did not maintain lawful status continuously since entry into the United
States as their tourist visas expired in 2017, and they have never had lawful status since that
expiration. Either one of these findings would support the Defendants’ actions. As it is, both
support it. Finally, this Court does not find that any alleged inaction by the Government, if any,
contributed to or constituted a technical reason for the Plaintiffs’ failure to maintain lawful status.
The actions taken by the Defendants were not arbitrary or capricious. The Defendants did
not abuse their discretion or otherwise act in a manner contrary to law. In fact, had they adopted
Plaintiffs’ arguments, they would have been acting contrary to well-established law. The Motion
to Dismiss (Doc. No. 20) is granted and the case is dismissed with prejudice.
SIGNED at Houston, Texas this 19th day of June, 2020. .
Ado)
“AndrewS.Hanen tw
United States District Judge