Opinion
Civil Action No. CCB-07-141.
April 8, 2008
MEMORANDUM
Now pending before the court is a motion to dismiss or, alternatively, for summary judgment filed by defendants United States Citizenship and Immigration Services and United States of America (collectively "USCIS") against plaintiff Sang Y. Lee. Lee filed suit challenging the validity of administrative regulation 8 C.F.R, § 245.10(j), which he argues impermissibly narrows the scope and coverage of 8 U.S.C. § 1255(i). The parties have fully briefed the motions and no hearing is necessary. Because the court lacks subject matter jurisdiction, the defendants' motion to dismiss will be granted.
BACKGROUND
The facts of this case do not appear to be in dispute. Lee entered the United States from South Korea on July 22, 2000 with a B2 visa, which authorized him to remain in the U.S. until January 21, 2001. It appears from the record that Lee overstayed his visa by remaining in the U.S. beyond that date although Lee says he filed for an extension. On June 13, 2003, Korean Broadcasting Network, Inc. ("KBN") substituted Lee as the beneficiary of a labor certification in place of Mr. Eun Lee, who previously did not seek to adjust his status to lawful permanent residency under the certification. This labor certification had been approved by the Labor Department for Eun Lee in March 2001. As noted by Lee, before a change in the law, courts for more than twenty years permitted one alien to be substituted as a beneficiary for another on an approved labor certification. (Complaint at ¶ 18 (citing Kooritzky v. Reich, 17 F.3d 1509 (D.C. Cir. 1994); Medellin v. Bustos, 854 F.2d 795 (5th Cir. 1988)).)
On March 3, 2003, based on the KBN labor certification and a pending I-140 Form, Lee filed an I-485 Application for Adjustment of Status in order to obtain permanent residency. Relevant to this case, Lee subsequently changed employers and, allegedly without notifying Lee, his attorney, Jon Chun, who was simultaneously representing KBN, wrote to USCIS to revoke the approved I-140 petition filed by KBN for the benefit of Lee. (Complaint at ¶ 12.) As a result of this letter, USCIS revoked the I-140 petition and denied Lee's I-485 application to adjust status on April 29, 2004. Lee obtained new counsel soon thereafter, who argued that USCIS should reconsider its denial of the application. The reconsideration motion was denied as untimely on May 12, 2006. Lee filed his first complaint in this case on January 16, 2007. On March 28, 2007, USCIS notified Lee that it would consider reopening his case but that, based on the record evidence, it did not appear Lee was entitled to take advantage of a statutory grandfathering provision, which would permit an alien who had already filed an adjustment application to continue to maintain that application even after an I-140 Form had been revoked. (Def.'s Mem. at 3.) Lee had thirty days to submit new written arguments and/or evidence but, in part because of his failure to do so, USCIS again denied Lee's adjustment of status application on May 15, 2007. ( Id. at 4.) On May 21, 2007, Lee filed an amended complaint in this court challenging the validity of the regulation relied upon by USCIS I in denying his application.
The statutory grandfathering provision at issue in this case is 8 U.S.C. § 1255(i), which provides that (emphasis added):
(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States —
(A) who —
(i) entered the United States without inspection; or
(ii) is within one of the classes enumerated in subsection (c) of this section;
(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 1153(d) of this title) of —
(i) a petition for classification under section 1154 of this title that was filed with the Attorney General on or before April 30, 2001; or
(ii) an application for a labor certification under section 1182(a)(5)(A) of this title that was filed pursuant to the regulations of the Secretary of Labor on or before such date; and
(C) who, in the case of a beneficiary of a petition for classification, or an application for labor certification, described in subparagraph (B) that was filed after January 14, 1998, is physically present in the United States on December 21, 2000;
may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence. . . .8 C.F.R. § 245.10(j), however, appears to narrowly define the "beneficiary" who can invoke this grandfathering provision to "[o]nly the alien who was the beneficiary of the application for the labor certification on or before April 30, 2001." The regulation goes on to note that "[a]n alien who was substituted for the previous beneficiary of the application for the labor certification after April 30, 2001, will not be considered to be a grandfathered alien." Id.
It is this regulation Lee challenges as ultra vires on the grounds that it impermissibly narrows the definition of the "beneficiary" class Congress intended to cover with the grandfathering provision. USCIS argues, however, that this court lacks subject matter jurisdiction to consider Lee's argument. In the alternative, USCIS suggests that the regulation provides a reasonable interpretation of the statute in question, even if it narrows the definition of the term "beneficiary." Because this court lacks subject matter jurisdiction, it will treat this motion as one for dismissal pursuant to Rule 12(b)(1).
ANALYSIS
When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff bears the burden of persuasion. See Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). There are two ways in which to present a 12(b)(1) motion for lack of subject matter jurisdiction. First, a defendant may claim that a complaint "simply fails to allege facts upon which subject matter jurisdiction can be based." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In that case, all the facts alleged in the complaint are assumed to be true and the plaintiff is essentially given the same procedural protection as he would have under a Rule 12(b)(6) motion for failure to state a claim upon which relief may be granted. Id. Second, a defendant may claim that the jurisdictional allegations of the complaint are sufficient, but not true. Id. In that event, the court may consider evidence beyond the pleadings in satisfying itself of its authority to hear the case without converting the proceeding to one for summary judgment. Williams, 50 F.3d at 304 (citing Mortensen v. First Federal Sav. Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1997)). The court must then weigh all the evidence to determine if there is jurisdiction. Adams, 697 F.2d at 1219.
This case involves the first kind of motion in that the USCIS is challenging on the face of the complaint whether this court has subject matter jurisdiction. Because the statutory scheme regarding judicial review of questions of law in certain immigration contexts appears to preclude a district court from entertaining jurisdiction over such matters, the defendants' motion to dismiss will be granted.
Title 8 U.S.C. § 1252(a)(2)(B) (emphasis added) provides that:
Notwithstanding any other provision of law (statutory or nonstatutory) . . . 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, other than granting relief under section 1158(a) of this title.
In 2005, Congress passed the REAL ID Act, which added the following language to the statute:
Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.8 U.S.C. § 1252(a)(2)(D) (emphasis added). These statutory provisions, read together, have been widely interpreted to preclude judicial review of a discretionary denial of status adjustment and to require any constitutional or legal challenges to be brought on appeal directly from the Board of Immigration Appeals ("BIA") to a federal court of appeals. See Saintha v. Mukasey, 516 F.3d 243, 248-50 (4th Cir. 2008); Jean v. Gonzalez, 435 F.3d 475, 480-82 (4th Cir. 2006); Rodas v. Chertoff, 399 F. Supp. 2d 697, 705-06 (E.D. Va. 2005).
Recognizing that unpublished opinions are neither precedential nor otherwise binding, the court notes that Judge Messitte, under similar circumstances, applied the same statutory provisions in finding the district court lacked subject matter jurisdiction. Patel v. Chertoff, Civ. Action No. PJM-05-1304 (D. Md. Aug. 31, 2006) (citing cases). In Patel, the plaintiffs made a nearly identical argument as Lee does here by challenging 8 C.F.R. § 1245.10(j) on the grounds that, because it violates the language and intent of 8 U.S.C. § 1255, it is ultra vires. Id. at *3. Patel, like Lee, was substituted as a beneficiary on a labor certification form after April 30, 2001, and was therefore found to be ineligible, under the regulation, for the statutory grandfathering provision. Judge Messitte specifically noted that while Congress did not explicitly bar a district court from considering whether the promulgation of a regulation is in itself an invalid exercise of agency authority, "the relevant statutes and cases make clear that the appropriate venue for relief for the Patels, if any, is the court of appeals, not the district court." Id. at *7. The Fourth Circuit recently affirmed Patel, because the plaintiffs "failed to raise any issues pertaining to the propriety of the district court's finding that it lacked jurisdiction over their challenges to the regulation." Patel v. Chertoff, 2008 WL 780738 (4th Cir. 2008). The Court agreed with the underlying "reasons stated by the district court" in concluding it lacked jurisdiction. Id.
Here, Lee's challenge of the regulation defining his statutory eligibility is a question of law. See Jean, 435 F.3d at 482 (noting that matters concerning statutory eligibility are not discretionary, but rather questions of law); Patel v. Chertoff, Civ. Action No. PJM-05-1304 (D. Md. Aug. 31, 2006) (same). To date, the Fourth Circuit has not passed on the viability of § 245.10(j). Lee's proper recourse, therefore, is to exhaust the applicable administrative review mechanism by proceeding from USCIS to the BIA and then directly to the circuit court of appeals. See Higuit v. Gonzales, 433 F.3d 417, 419-20 (4th Cir. 2006) (describing the statutory framework guiding judicial review in the immigration context); Balbuena Torres v. Gonzales, 229 Fed. Appx. 261 (4th Cir. 2007) (dismissing appeal concerning the validity of 8 C.F.R. § 1245.10(j) on the grounds that the plaintiff did not raise the issue before the BIA, thereby failing to exhaust administrative remedies). Because this court does not have subject matter jurisdiction over Lee's challenge, the motion to dismiss will be granted.
A separate order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:1. the defendants' motion to dismiss the complaint or, in the alternative, for summary judgment (docket entry no. 17) is GRANTED;
2. this case is DISMISSED under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction; and
3. The Clerk shall CLOSE this case.