Echeverri Mancilla v. Brennan Seng

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

DIEGO FERNANDO

ECHEVERRI MANCILLA,

Plaintiff,

v. Case No: 6:24-cv-01065-PGB-DCI

MARY ELIZABETH BRENNAN

SENG,

Defendant.

/

ORDER

This cause is before the Court on Defendant Mary Elizabeth Brennan Seng’s

(“Defendant”)1 Motion to Dismiss pursuant to Federal Rule of Civil Procedure

12(b)(1) for lack of subject matter jurisdiction. (Doc. 16 (the “Motion”)). Plaintiff

Diego Fernando Echeverri Mancilla (“Plaintiff”) submitted a response in

opposition. (Doc. 19 (the “Response”)). Upon consideration, the Motion is due to

be granted.

1 Defendant Mary Elizabeth Brennan Seng is the Acting Director of the United States

Citizenship and Immigration Services (hereinafter, the “USCIS” or “agency”) Texas Service

Center.

I. BACKGROUND2

Plaintiff requests that this Court review a final agency decision denying his

Form I-140, Immigrant Petition for Alien Worker (“Form I-140”). (See generally

Doc. 13 (the “Amended Complaint”)).

Plaintiff, a citizen of Colombia, has resided in the United States as a

nonimmigrant investor. (Id. ¶ 1). On or about July 21, 2023, Plaintiff filed a Form

I-140 with the USCIS seeking classification as an Alien Worker eligible for a

National Interest Waiver, which permits the USCIS to waive certain job offer and

labor certification requirements for the advancement of national interest. (Id. ¶¶

10–11).

On or about December 16, 2024, the USCIS denied Plaintiff’s Form I-140,

finding that Plaintiff did not qualify for the National Interest Waiver using a three-

prong test laid out in the agency’s prior decision, Matter of Dhanasar, 26 I. & N.

Dec. 884 (USCIS AAO 2016) (the “Dhanasar test”). (Id. ¶ 11; Doc. 13-1). As a

result, Plaintiff filed the instant action, seeking judicial review of the USCIS’s

decision pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §

706(2).3 (Doc. 13 ¶¶ 8, 23–24; see Doc. 1).

2 This account of the facts comes from Plaintiff’s Amended Complaint. (Doc. 13). The Court

accepts a plaintiff’s factual allegations as true when considering a motion to dismiss. See

Williams v. Bd. of Regents, 477 F.3d 1282, 1291 (11th Cir. 2007).

3 Alternatively, if USCIS were to vacate its December 16, 2024 decision, Plaintiff requests: (1) a

preliminary and permanent injunction pursuant to 28 U.S.C. § 1361 and 5 U.S.C. § 706(1); (2)

an issuance of a writ of mandamus pursuant to 28 U.S.C. § 1361 and 5 U.S.C § 706(1); and (3)

attorney’s fees and costs for this suit pursuant to the Equal Access to Justice Act 28 U.S.C. §

2412. (Doc. 13, ¶¶ 4–6). Given that this Motion is due to be granted, Plaintiff’s additional

requests will not be addressed.

In pursuit of judicial review, Plaintiff’s primary argument is that the USCIS,

in applying the Dhanasar test, “fail[ed] to provide any analysis as to how [it] came

to [the] conclusion Plaintiff did not meet the second and third prongs of the test. .

. . [given] the [denial] simply state[d] the law and then conclude[d] Plaintiff’s

proposed endeavor [did] not meet the requirements [for the National Interest

Waiver].” (Id. ¶ 12). Accordingly, “Plaintiff submits Defendant acted arbitrarily and

capriciously in failing to provide proper analysis and detailed explanation as

required by case law and its own regulations as to why it determined Plaintiff failed

to meet the [second] and [third] prongs of the Dhanasar test.” (Id. ¶ 20). As such,

Plaintiff requests that the Court review the agency’s decision as it has the

“authority . . . to set aside any decision found to be ‘arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with the law.’” (Id. ¶ 18); see 5 U.S.C.

§ 706(2).

In due course, Defendant filed the instant Motion to Dismiss, asserting that

the Court lacks subject matter jurisdiction over the matter. (Doc. 16). Plaintiff

responded in opposition (Doc. 19), and thus, the matter is now ripe for review.

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(b)(1), a party may challenge

subject matter jurisdiction on facial or factual grounds. Carmichael v. Kellogg,

Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). For facial

challenges as here, the court looks to the face of the complaint and determines

whether the plaintiff sufficiently alleges standing. Stalley ex rel. U.S. v. Orlando

Reg’l Healthcare Sys. Inc., 524 F.3d 1229, 1232–33 (11th Cir. 2008). In doing so,

the court is limited to the complaint’s allegations and exhibits, which the court

must accept as true. Id. at 1232.

“When defending against a facial attack, the plaintiff has safeguards similar

to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim

is raised[.]” Id. at 1233 (11th Cir. 2008) (quoting McElmurray v. Consol. Gov’t of

Augusta-Richmond Cnty., 501 F. 3d 1244, 1251 (11th Cir. 2007)). The court must

view the complaint in the light most favorable to the plaintiff and must resolve any

doubts as to the sufficiency of the complaint in the plaintiff’s favor. Hunnings v.

Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994) (per curiam). However, though a

complaint need not contain detailed factual allegations, pleading mere legal

conclusions, or “a formulaic recitation of the elements of a cause of action,” is not

enough to satisfy the plausibility standard. Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007).

III. DISCUSSION

Plaintiff filed this action seeking judicial review of the USCIS’s denial of his

Form I-140 pursuant to the APA. (Docs. 1, 13).

The APA allows courts to “set aside” agency actions that are “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A). However, the APA does not grant courts jurisdiction to do so

when (1) a statute expressly “precludes judicial review,” or (2) even if Congress did

not explicitly preclude judicial review, there is an agency action that is “committed

to agency discretion by law.” Brasil v. Sec’y Dep’t of Homeland Sec., 28 F.4th 1189,

1192 (11th Cir. 2022) (quoting 5 U.S.C. § 701(a)(1)–(2)). “If a statute precludes

judicial review, [then] federal courts lack subject matter jurisdiction.” Id. at 1192

(citing Zhu v. Gonzales, 411 F.3d 292, 293 (D.C. Cir. 2005)).

Here, Plaintiff posits that the Court has authority to review Defendant’s

decision as it “acted arbitrarily and capriciously in failing to provide proper

analysis and detailed explanation” with respect to its decision denying Plaintiff’s

Form I-140. (Doc. 13, ¶¶ 18–20); see 5 U.S.C. § 706(2). To the contrary, Defendant

moves to dismiss Plaintiff’s Complaint for lack of subject matter jurisdiction

pursuant to Rule 12(b)(1). (See generally Doc. 16). Specifically, Defendant asserts

that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., bars

judicial review of Plaintiff’s Form I-140 denial. (See id. at pp. 7–8). Ultimately, the

Court agrees with Defendant.

Section 1153(b)(2)(A) of the INA governs Form I-140 visa petitions for

professionals with advanced degrees or exceptional ability:

Visas shall be made available, in a number not to exceed 28.6

percent of such worldwide level . . . to qualified immigrants

who are members of the professions holding advanced

degrees or their equivalent or who because of their

exceptional ability in the sciences, arts, or business, will

substantially benefit prospectively the national economy,

cultural or educational interests, or welfare of the United

States, and whose services . . . are sought by an employer in

the United States.

8 U.S.C. § 1153(b)(2)(A); see also 8 C.F.R § 204.5(k)(1).

However, § 1153(b)(2)(B)(i) carves out an exemption to the job offer and

labor certification requirements for certain prospective aliens seeking immigrant

visas via a National Interest Waiver. In particular, § 1153(b)(2)(B)(i) provides that

“the Attorney General may, when the Attorney General deems it to be in the

national interest, waive the requirements of subparagraph (A) that an alien’s

services in the science, arts, professions, or business be sought by an employer in

the United States.” 8 U.S.C. § 1153(b)(2)(B)(i) (emphasis added); see also 8 C.F.R.

§ 204.5(k)(4)(ii). In its precedential decision Matter of Dhanasar, the USCIS

revised the framework for evaluating national interest waivers and promulgated a

three-prong test to analyze such requests. 26 I. & N. Dec. 884. Ultimately, after

applying the Dhanasar test, the USCIS denied Plaintiff’s request for a Form I-140

National Interest Waiver pursuant to its discretionary authority. (See Doc. 13-1,

pp. 1–2, 7; see also Doc. 13).

In support of Defendant’s Motion, Defendant argues that “the INA strips

[this Court’s] jurisdiction over the relief sought in Plaintiff’s Complaint” because §

1153(b)(2)(B)(i) confers discretionary authority to grant or deny a national

interest waiver to the Attorney General. (Doc. 16, pp. 7–11); see 8 U.S.C. §

1153(b)(2)(B)(i); 8 U.S.C. § 1252(a)(2)(B).

Under the title “Denials of discretionary relief,” § 1252(a)(2)(B) further

provides as follows:

Notwithstanding any other provision of law (statutory or

nonstatutory), including section 2241 of Title 28, or any other

habeas corpus provision, and sections 1361 and 1651 of such

title, and except as provided in subparagraph (D), and

regardless of whether the judgment, decision, or action is

made in removal proceedings, no court shall have

jurisdiction to review—

(i) any judgment regarding the granting of relief under

section 1182(h), 1182(i), 1229b, 1229c, or 1255 of

this title, or

(ii) any other decision or action of the Attorney

General or the Secretary of Homeland Security the

authority for which is specified under this

subchapter to be in the discretion of the

Attorney General or the Secretary of

Homeland Security [(“Secretary”)], other

than the granting of relief under section 1158(a) of

this title.

8 U.S.C. § 1252(a)(2)(B) (emphasis added). As such, in a unanimous opinion, the

Supreme Court held that § 1252(a)(2)(B)(ii) strips federal courts of their

jurisdiction to review immigration decisions by the Attorney General or Secretary

of Homeland Security that are “made discretionary by legislation.” Bouarfa v.

Mayorkas, 604 U.S. 6, 9, 17 (2024) (quoting Kucana v. Holder, 558 U.S. 233, 246–

47 (2010)).

Relying on Bouarfa, the Court turns its analysis to whether §

1153(b)(2)(B)(i)—the provision governing National Interest Waivers—confers the

Attorney General the type of discretionary authority that would bar judicial review

under 8 U.S.C. § 1252(a)(2)(B). See Bouarfa, 604 U.S. 6. The Eleventh Circuit in

Brasil held that it does. 28 F.4th at 1191. Unanimously, the Brasil court concluded

that § 1252(a)(2)(B)(ii) “precludes judicial review of a denial of a national interest

waiver under § 1153(b)(2)(B)(i).” Id.

Simply put, in the case at bar, Defendant denied Plaintiff’s Form I-140

petition for a National Interest Waiver pursuant to Defendant’s discretionary

authority to do so. (See Doc. 13, ¶ 11; see also Doc. 16, p. 2). Thus, the decisions in

Bouarfa and Brasil compel the conclusion that the judicial bar in §

1252(a)(2)(B)(ii) precludes judicial review of national interest waiver denials. See

Bouarfa, 604 U.S. 6; Brasil, 28 F.4th 1189.

Nevertheless, the Eleventh Circuit has warned that it has not completely

foreclosed judicial review of discretionary immigration decisions made by the

Attorney General or the Secretary. See T & B Holding Grp., LLC v. U.S. Att’y Gen.,

Sec’y, No. 23-13385, 2025 WL 1013414, at *3 (11th Cir. Apr. 3, 2025); Bouarfa v.

Sec’y, Dep’t of Homeland Sec., 75 F.4th 1157, 1161 (11th Cir. 2023); Kurapati v.

U.S. Bureau of Citizenship & Immigr. Servs., 775 F.3d 1255, 1259–60, 1262 (11th

Cir. 2014). According to the Eleventh Circuit, the Supreme Court’s decision in

Bouarfa “did not disturb our binding precedent holding that claims of procedural

error challenging a discretionary revocation decision are reviewable.” T & B

Holding, 2025 WL 1013414, at *3. In other words, claims that implicate the

Attorney General or the Secretary “fail[ing] to follow the correct procedure in

making a discretionary decision” are not barred from judicial review under §

1252(a)(2)(B)(ii). Id. at *2 (quoting Bouarfa, 75 F.4th at 1161).

That being said, the T & B Holding court emphasized that procedural claims

cannot be used to “sidestep the jurisdictional bar in [§] 1252(a)(2)(B) by reframing

a challenge to the agency’s denial of relief as a claim of procedural error.” Id.

(quoting Bouarfa, 75 F.4th at 1163). For example, a claim that the agency

“erroneously applied a standard that the agency had articulated to guide its

evaluation” equates to an argument that the agency “reached the wrong decision”

and thus, is not a procedural claim. Id. (quotation marks omitted). Similarly, a

claim that an agency decision is “arbitrary and capricious” under the APA because

the decision was “not supported by substantial evidence” is also not a procedural

claim as the claim merely boils down to an argument that the agency incorrectly

weighed the evidence and made a wrong decision. See id. at *3. In fact, there are

limited examples of acceptable “procedural” claims challenging discretionary

decisions that circumvent § 1252(a)(2)(B)(ii)’s jurisdictional bar. Id. at *4 (holding

that a claim was reviewable because the Administrative Appeals Office revoked a

visa petition in a manner in which it lacked the discretion to do so and failed to

comply with the board’s own binding precedent); Kurapati, 775 F. 3d at 1259–60,

1262 (finding that because the USCIS failed to provide the plaintiffs with prior

notice of their I-140 petition revocation, such a claim was procedural and thus,

reviewable by federal courts).

Here, Plaintiff argues that he “does not request review of the discretionary

decision of USCIS; rather [he] challenges the decision for [USCIS’s] failure to

provide analysis as to how the[ir] decision was reached.” (Doc. 19, pp. 2–3; see

Doc. 13). Specifically, Plaintiff argues that the agency’s decision denying Plaintiff’s

Form I-140 “fails to provide any analysis as to how Defendant came to [the]

conclusion Plaintiff did not meet the second and third prongs of the [Dhanasar]

test,” making Defendant’s actions “arbitrary and capricious, an abuse of discretion

and not in accordance with the law pursuant to [the APA].” (Doc. 13, pp. 3, 6; see

Doc. 19). In support of his argument, Plaintiff primarily cites to (1) 8 C.F.R. §

103.3(a)(1)(i), an agency regulation that requires application and petition denials

to be explained in writing and provide the specific reasons for a denial, and (2)

Matter of M-P-, 20 I. & N. Dec. 786 (BIA 1994), a Board of Immigration Appeals’

decision which called for motion denials to have written explanations and

reasonings. (Doc. 13, ¶¶ 13–14; see Doc. 19, pp. 3–5).

Ultimately, the agency’s denial letter assesses each prong of the Dhanasar

test, providing a detailed explanation as to why Plaintiff’s Form I-140 was denied.

(See Doc. 13-1, pp. 3–7). According to the USCIS, Dhanasar is a “precedent

decision,” which sets forth the framework for the agency to determine whether it

should employ its discretion and grant a National Interest Waiver petition under §

1153(b)(2)(B)(i). (Id. at p. 3); Matter of Dhanasar, 26 I. & N. Dec. 884, at 884.

Thus, by utilizing the Dhanasar test, Defendant is not acting outside, or contrary

to, its own established regulations. Id.; see Onyenanu v. Garland, No: 8:23-cv-

138-CEH-TGW, 2024 WL 5078098, at *5 (M.D. Fla. Dec. 11, 2024).

Although Plaintiff acknowledges that Defendant used the proper Dhanasar

test, Plaintiff hinges his argument for review on Defendant failing to provide

adequate reasoning as to why Plaintiff’s application did not fulfill the second and

third prongs of the Dhanasar test. (See Doc. 13, ¶¶ 12, 16–17; Doc. 19). Alas, the

denial letter indeed explains what qualitative attributes were missing in Plaintiff’s

application, providing written justification for the agency’s conclusion that certain

prongs of Dhanasar were not met. (See Doc. 13-1, pp. 5–7). Thus, such detailed

reasoning provides sufficient information regarding why Plaintiff’s application was

denied, and therefore, the denial does not run afoul of agency requirements or

precedent. See 8 C.F.R. § 103.3(a)(1)(i);4 Matter of M-P-, 20 I. & N. Dec. 786.

Consequently, scrutinizing the quality of Defendant’s reasoning with respect

to their application of Dhanasar and ultimate denial is purely substantive and not

procedural, which runs afoul of Eleventh Circuit precedent. See Brasil, 28 F. 4th

at 1194 (“Instead, [plaintiff] argues that USCIS erred in finding that [plaintiff] did

not meet the Dhanasar test. Section 1252(a)(2)(B)(ii) precludes judicial review of

that decision.”); T & B Holding, 2025 WL 1013414, at *3 (“Under the Supreme

Court’s Bouarfa decision, the district court lacked jurisdiction to consider any

substantive challenges to USCIS’s decision to revoke its prior approval of

[plaintiff’s] visa petition.”); see also Patel v. Garland, 596 U.S. 328, 347 (2022).

In sum, given the arguments raised in the case at bar and binding case law,

§ 1252(a)(2)(B)(ii) bars judicial review of Defendant’s discretionary decision to

4 Again, the Court clarifies that the INA does not preclude judicial review of procedural

“allegations that an agency failed to follow its own binding regulations,” such as those set forth

under 8 C.F.R. § 103.3(a)(1)(i). Kurapati, 775 F. 3d at 1262; see Avullija v. Dir., Citizenship &

Immigr. Servs., No. 21-13452, 2022 WL 2277394, at *4 (11th Cir. June 23, 2022). However,

as addressed herein, the Court will “scrutinize[] claims purportedly brought under exceptions

to the jurisdictional limitations of the INA that in fact seek substantive judicial review of

agency decisions.” Avullija, 2022 WL 2277394, at *4–5. The Court will not entertain such

claims that are merely an attempt to “circumvent the INA’s jurisdiction stripping provisions

by characterizing an abuse of discretion argument as a constitutional claim.” Id.

decline Plaintiffs Form I-140 for a National Interest Waiver pursuant to §

1153(b)(2)(B)().

IV. CONCLUSION

For these reasons, Defendant’s Motion to Dismiss (Doc. 16) is GRANTED.

The Amended Complaint (Doc. 13) is DISMISSED WITH PREJUDICE. The

Clerk of Court is DIRECTED to close the file.

DONE AND ORDERED in Orlando, Florida on August 24, 2025.

PAUL G.

UNITED STATES®@ISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties