Opinion
Case No.: 2:19-cv-01383-GMN-DJA
2020-09-04
Dionisie Razvan SPOREA; Skai Nicole Peed-Sporea, Plaintiffs, v. UNITED STATES of America., et al., Defendants.
Anna Darbinian, Pro Hac Vice, Asherson, Klein & Darbinian, Beverly Hills, CA, Brian James Smith, Law Office of Brian J. Smith, Ltd., Las Vegas, NV, for Plaintiffs. Gregory W. Addington, U.S. Attorney's Office, Reno, NV, for Defendants.
Anna Darbinian, Pro Hac Vice, Asherson, Klein & Darbinian, Beverly Hills, CA, Brian James Smith, Law Office of Brian J. Smith, Ltd., Las Vegas, NV, for Plaintiffs.
Gregory W. Addington, U.S. Attorney's Office, Reno, NV, for Defendants.
ORDER
Gloria M. Navarro, District Judge
Pending before the Court is the Motion to Dismiss, (ECF No. 8), filed by Defendants Ken Cuccinelli, Al Gallman, Jeanne M. Kent, Kevin McAleenan, and the United States of America (collectively, "the Government"). Plaintiffs Skai Nicole Peed-Sporea ("Skai") and Dionisie Razvan Sporea ("Petitioner") (collectively, "Plaintiffs") filed a Response, (ECF No. 9), and the Government filed a Reply, (ECF No. 10). For the reasons discussed below, the Court DENIES the Motion.
I. BACKGROUND
This case arises from the United States Citizenship and Immigration Services’ ("USCIS's") denial of Plaintiffs’ application for Petitioner's adjustment of status to lawful permanent residence. (See Compl. ¶¶ 6–9). Petitioner, a citizen of Romania, first entered the United States possessing both "C-1" and "D" visas. (Id. ¶¶ 5, 21). Petitioner alleges that his "C-1" and "D" visa classifications are two separate visas. (Id. ¶¶ 22–23, 35). He explains that his C-1 visa allowed him to travel continuously through the United States until its expiration on January 9, 2004. (Id. ¶¶ 22, 35). He alleges that his "D" visa provided him the option to work as a crewman after entering the United States. (Id. ¶ 23).
Petitioner's visa(s) allegedly contained an annotation stating, "photographer to join [the] M/V Lirica [cruise ship] in Port Everglades on December 14, 2003." (Id. ¶¶ 21, 25). Nevertheless, he alleges that he explained upon entry to the interviewing Department of Homeland Security personnel that he intended to travel through the United States to "pursue various [employment] opportunities." (Id. ¶ 28). Petitioner's employment opportunities included working in a California restaurant, for a Nevada construction business, or as a photographer on the M/V Lirica. (Id. ¶ 27). Petitioner alleges that he received a stamp on his C-1 visa and entered the country only under his C-1 visa. (Id. ¶¶ 26, 28). Petitioner ultimately never worked as a crewman on the M/V Lirica, and he overstayed his C-1 visa. (Id. ¶¶ 32, 35).
Ultimately, Petitioner married his wife, Skai, a United States citizen. (Id. ¶ 36). After their marriage in September of 2017, Plaintiffs sought an adjustment of status from USCIS for Petitioner so he could remain in the United States as a lawful permanent resident. (Id. ¶ 5). USCIS denied the application, finding Petitioner ineligible for adjustment of status because he entered the United States as an alien crewman. (Id. ¶¶ 5–6, 39). Plaintiffs allege that USCIS explained the annotation on Petitioner's visa provided the basis for the denial, stating: "[you] put on your application you were intending to work on the ship M/V/ Lirica. It is clearly documented on your visa and would have been a major reason for being granted the nonimmigrant visa." (Id. ¶ 42). Plaintiffs argue that the decision was an abuse of discretion because the agency did not review Petitioner's visa application and assumed the facts thereof by overstating the annotation's implications. (Id. ¶¶ 42, 61–62). Plaintiffs now ask this Court to vacate USCIS's denial and remand Petitioner's application to USCIS under the Administrative Procedure Act ("APA"). (Id. 14:6–15:1).
II. LEGAL STANDARD
a. 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. See N. Star Int'l v. Ariz. Corp. Comm'n , 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In considering whether the complaint is sufficient to state a claim, the Court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan , 792 F.2d 896, 898 (9th Cir. 1986). The Court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors , 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible , not just possible. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).
A court may also dismiss a complaint pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with Federal Rule of Civil Procedure 8(a). Hearns v. San Bernardino Police Dept. , 530 F.3d 1124, 1129 (9th Cir. 2008). Rule 8(a)(2) requires that a plaintiff's complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).
"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion .... However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss." Hal Roach Studios, Inc. v. Richard Feiner & Co. , 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell , 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay Beer Distrib. , 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss becomes a motion for summary judgment. See Arpin v. Santa Clara Valley Transp. Agency , 261 F.3d 912, 925 (9th Cir. 2001).
If the court grants a motion to dismiss, it must then decide whether to grant leave to amend. The court should "freely give" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant ... undue prejudice to the opposing party by virtue of ... the amendment, [or] futility of the amendment ...." Fed. R. Civ. P. 15(a) ; Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
b. APA
The APA authorizes judicial review where a person "suffer[s] legal wrong because of agency action, or [is] adversely affected or aggrieved by agency action within the meaning of [the] relevant statute." 5 U.S.C. § 702. The reviewing district court is, in turn, empowered to set aside a final agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). "The arbitrary and capricious standard is highly deferential, presuming the agency action to be valid and requires affirming the agency action if a reasonable basis exists for its decision." Kern County Farm Bureau v. Allen , 450 F.3d 1072, 1076 (9th Cir. 2006) (internal quotation omitted). Even so, the reviewing court must set aside an agency decision where "there is no evidence to support the decision or ... the decision was based on an improper understanding of the law." Kazarian v. United States Citizenship and Immigration Services , 596 F.3d 1115, 1118 (9th Cir. 2010).
III. DISCUSSION
The parties’ dispute concerns whether Petitioner is subject to the alien-crewman bar on nonimmigrants’ ability to adjust their immigration status. The Government argues that the Court must dismiss the Complaint because Petitioner entered the United States as an alien crewman, and he is therefore ineligible for adjustment of status. (Mot. Dismiss ("MTD") 8:8–11:2, ECF No. 8). Petitioner responds that the Motion to Dismiss should be denied because USCIS abused its discretion in concluding Petitioner entered the United States as a crewman. (Resp. 1:14–2:24, ECF No. 9). The Court concludes that the Government's Motion should be denied because the facts alleged in the Complaint suggest that USCIS abused its discretion in concluding that Petitioner entered the United States as a crewman.
Generally, an alien is eligible for adjustment of status to lawful permanent residence if, "(1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed." 8 U.S.C. § 1255(a). However, "alien crewmen" are ineligible for adjustment of status. 8 U.S.C. § 1255(c). The Immigration and Nationality Act ("INA") defines "crewman" to mean "a person serving in any capacity on board a vessel or aircraft." 8 U.S.C. § 1101(a)(10). When assessing whether an alien entered the United States as a crewman, the Court examines both: (1) the type of visa the alien possessed; and (2) the nature of the alien's admission. See Matter of G—D—M— , 25 I. & N. Dec. 82, 85 (BIA 2009). "If it is apparent ... that the alien was issued a visa as a crewman and entered the United States in pursuit of his occupation as a seaman, then he is to be regarded as an alien crewman." Id. The Court proceeds below by considering how the type of visa Petitioner held and the circumstances surrounding his admission bare on his eligibility for adjustment of status.
Plaintiffs urge a different interpretation of the crewman bar's elements: "the alien must be serving aboard a vessel in a capacity required for its normal operation: [sic] and he must be seeking (and gain) admission to this country because of his occupation in that role." (Resp. 2:5–8) (citing Matter of Rebelo , 13 I. & N. Dec. 84, 86 (BIA 1968)) ; Matter of Campton , 13 I. & N. Dec. 535, 536 (BIA 1970). While Petitioner does echo the BIA's previous expression of the rule, the BIA's recent jurisprudence shows that a nonimmigrant is a crewman if he enters the United States intending to work as a crewman, irrespective of whether he actually joins a crew. Matter of G—D—M— , 25 I. & N. Dec. at 85–86.
a. Petitioner's Visa
The Government argues that Petitioner is a crewman by virtue of his C-1/D visa. (MTD 9:13–10:14). Petitioner responds that he is not a crewman because he was admitted under his C-1 visa, which allowed him to remain in transit throughout the United States without joining a crew. (Resp. 1:19–23). The Court finds that Petitioner's visa suggests that he is a crewman, but the type of visa he received is not dispositive of his eligibility for adjustment of status.
Before arriving to the United States, the Complaint alleges Petitioner was given two separate visas: a "C-1" and a "D." (See Compl. ¶¶ 21–23). A C-1 visa is given to nonimmigrants "in immediate and continuous transit throughout the United States ...." See Chica-Roman v. Att'y Gen. of U.S. , 462 F. App'x 221, 222 n.1 (3d Cir. 2012) (per curiam); see also 8 U.S.C. § 1101(a)(15)(C). A "D" visa is given to nonimmigrant alien crewmen. Id. See also 8 U.S.C. § 1101(a)(15)(D).
The Ninth Circuit has not yet addressed whether an alien with both "C-1" and "D" visas is properly designated as an alien crewman. However, other circuits have unanimously held that an alien holding a "C-1/D" classification is consistent with being designated as an alien crewman, even if only the alien's C-1 visa is stamped at entry. See Guerrero v. Nielsen , 742 F. App'x. 793, 795 (5th Cir. 2018) ("such visas are issued to alien crew-members who intend to transit through the United States (as C-1s) on their way to joining crews (as Ds)."); Ozuna v. U.S. Att'y Gen. , 568 F. App'x 733, 735–36 (11th Cir. 2014) ("Ozuna, however, has not presented any evidence to substantiate his argument [he did not intend to work as a crewman], and, absent such evidence, his C-1/D visa status reasonably supports the opposite conclusion."); Guerrero v. Holder , 734 F.3d 45, 49 (1st Cir. 2013) ("An alien who is issued a C-1/D visa and admitted to the United States under a C-1 classification is properly classified as an alien crewman."); Sarup v. Att'y Gen. of U.S. , 423 F. App'x 231, 234 (3d Cir. 2011) (per curiam) (explaining that petitioner, a C-1/D holder's "C-1 status does not mean that he cannot also be a non-immigrant alien crewman."); Matter of G—D—M— , 25 I. & N. Dec. at 83 ("The record reflects that the respondent was issued a Form I-94 (Arrival-Departure Record) that classified him as a C-1 nonimmigrant in transit, and his passport included a ‘C-1/D’ visa. The ‘D’ on his visa indicated that he had been accorded ‘alien crewman’ status ...."). This Court finds the weight of out-of-circuit authority persuasive and concludes that Petitioner's receipt of a C-1/D visa is consistent with being an alien crewman.
Petitioner argues that despite being issued a C-1/D classification, he did not enter the United States as a crewman because he entered under his C-1 classification as an alien in transit, and his passport and Form I-94 Arrival/Departure Record ("I-94") were stamped accordingly. (Resp. 2:27–5:24); (Compl. ¶¶ 26, 28). Petitioner's argument is unpersuasive; alien crewmen often receive passport and I-94 stamps under only their C-1 visas when entering the United States while in transit to the ships upon which they will work. See Matter of G—D—M— , 25 I. & N. Dec. at 83–86 (explaining that despite respondent's I-94 noting he entered under a C-1 visa, his C-1/D visa was consistent with alien crewman status because the visa he entered and the circumstances surrounding his entry demonstrated that he entered for the purposes of working on a crew). The relevant inquiry is not the stamps Petitioner received on his entry paperwork, but whether he represented that he intended to work as a crewman upon entry. Id. at 86 ("the dispositive issue [is] whether the alien had entered the United States in pursuit of his calling as a seaman ..."). Thus, Petitioner's allegations surrounding his entry under only his C-1 visa do not alone support a plausible claim to relief. Nevertheless, USCIS would have abused its discretion had it relied solely on Petitioner's visa status in denying his application for adjustment. See id. Accordingly, the Court now turns to whether the Complaint alleges facts demonstrating that Petitioner entered the country as a crewman.
b. Surrounding Circumstances
The Government argues that Petitioner represented he intended to enter the United States as a crewman, which makes him ineligible for adjustment of status. (MTD 9:13–10:14). Petitioner responds that he entered the United States in transit, but he did not enter as a crewman nor did he represent a firm intent to join a crew. (Resp. 3:22–5:10). The Court concludes that the Complaint states a plausible claim for relief because the Complaint alleges that Petitioner explained upon entry that he was not destined to join a vessel as a crewman, and the Complaint does not allege Petitioner's disclosures on his visa application. When analyzing the applicability of the alien-crewman bar to one's eligibility for lawful permanent residence, the type of visa issued is not dispositive. Matter of G—D—M— , 25 I. & N. Dec. at 85. The Court must also look to the circumstances surrounding the petitioner's entry. Id. The relevant inquiry is whether a petitioner was "destined to join a vessel" as a crewman at the time of entry. 8 C.F.R. § 245.1(b)(2) ; see also Guerrero v. Holder , 734 F.3d at 50 ("the pertinent inquiry revolves around the circumstances surrounding the individual's expressed intentions at the time of entry."). In conducting the analysis, the Court looks to representations the petitioner made to secure his visa; the petitioner's past employment history; and his representations to immigration agents about his intent upon entry. See, e.g., Guerrero v. Holder , 734 F.3d at 50 ("It is undisputed that, at entry, Guerrero believed he would be boarding a ship as a crewman, and entered the country intending to do just that."); Chica-Roman v. U.S. Att'y Gen. , 462 F. App'x 221, 224 (3d Cir. 2012) ("Substantial evidence supports the BIA's determination that Chica-Roman was issued a visa as an alien crewman in transit, as Chica-Roman testified that he acquired his visa by representing ... he would be entering the United States as a marine crewman ...."); Matter of G—D—M— , 25 I. & N. Dec. at 86 ("Accordingly, in this case, where the respondent secured a visa as a crewman, entered the United States pursuant to that visa, arrived with the intention of working as a seaman, and identified himself as a crewman on his asylum application, we conclude that he entered as a crewman ....").
Here, Petitioner alleges that he never represented to the Government that he was destined to be a crewman. (Compl. ¶¶ 27–28). Instead, he explains that he told USCIS he came to the United States in pursuit of several job opportunities, only one of which was being a photographer on a cruise ship. (Id. ). Petitioner also allegedly explained that he was considering working at a restaurant in California or working for a construction company in Nevada. (Id. ). The Complaint does not include other alleged representations Petitioner made to the Government to secure his visa. Consequently, accepting the Complaint's allegations as true for the purpose of evaluating the Government's Motion to Dismiss, the Court finds that Petitioner was not "destined" to serve as a crewman.
The Government argues that Petitioner may have represented his intent to join a crew in order to acquire his visa, as evidenced by the annotation on his visa. (MTD 9:15–18). While that may well be true, Petitioner's Complaint does not allege that he represented his intent to join a crew on his visa application. (Cf. Compl. ¶¶ 27–28, 38–39, 42–43). In fact, Petitioner alleges that USCIS abused its discretion by assuming Petitioner represented his intent to join a crew on his visa application without reviewing his application. (Id. ¶ 43). While evidence at summary judgment may reveal that Petitioner either represented his intent to join a crew or that he in fact intended to join a crew upon entry—or the lack of evidence available to USCIS made its inference about the visa annotation reasonable—the Court cannot so conclude based on the facts alleged in the Complaint. The Court therefore denies the Motion to Dismiss.
IV. CONCLUSION
IT IS HEREBY ORDERED that the Motion to Dismiss, (ECF No. 8), is DENIED .