The opinion of the court was delivered by: Gladys Kessler U.S. District Judge
Plaintiff, Mahaveer, Inc., brings this action under the Administrative Procedure Act, 5 U.S.C. §§ 701-706 ("APA"), against Defendants Sandra T. Bushey, Acting District Director for the Vermont Service Center for the U.S. Department of Homeland Security, John Ashcroft, former Attorney General of the United States, and the Department of Homeland Security. Plaintiff challenges Defendants' decision to deny its application for an extension of the stay in this country of one of its employees as an L-1A intra-company transferee nonimmigrant.
This matter is before the Court on Defendants' Motion to Dismiss or for Summary Judgment. Upon consideration of the Motion, Opposition, and Reply, and the entire record herein, and for the reasons stated below, Defendants' Motion, [#10], is granted.
Plaintiff is a corporation which owns, operates, and manages hotels and motels in the state of Virginia. Am. Compl. at ¶ 3. On September 23, 1999, Plaintiff petitioned the Vermont Service Center of the Bureau of Citizenship and Immigration Services of the U.S. Department of Homeland Security, to grant its employee, Nilesh S. Shah, status as an L1-A nonimmigrant intra-company transferee in a managerial or executive capacity, pursuant to § 101(a)(15)(L) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101, et seq..*fn2 Defs.' St. of Mat. Facts Not in Dispute, ¶ 1. Defendants approved that request on September 30, 1999 and granted Shah beneficiary L-1A status from November 15, 1999 to November 15, 2000. Id.
On November 18, 2000, Plaintiff filed a petition to extend Shah's L-1A status. Id. ¶ 2. Defendants again approved the request, and granted Shah beneficiary L-1A status from November 16, 2000 to November 15, 2002. Id.
On November 14, 2002, Plaintiff filed a third petition to extend Shah's L-1A status. Id. ¶ 8. Defendants denied that petition on December 30, 2003, concluding that Plaintiff failed to establish, pursuant to INA § 101(a)(15)(L) and § 101(a)(44), that Shah was employed primarily in an executive or managerial capacity. Id. Plaintiff filed a notice of appeal on April 22, 2003 and requested an additional 60 days to submit a brief and/or evidence in support of its petition. Id. ¶ 9. On October 14, 2004, after Plaintiff failed to submit any additional materials, the appeal was dismissed because Plaintiff had not met its burden to identify an erroneous conclusion of law or statement of fact as the basis of the appeal. Id. Thereafter, Plaintiff filed this action, seeking reversal of Defendants' decision not to extend Shah's L-1A status.*fn3
A motion to dismiss should be granted only "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). A motion to dismiss tests not whether the plaintiff will prevail on the merits, but instead whether the plaintiff has properly stated a claim. See Fed. R. Civ. P. 12(b)(6). Accordingly, the factual allegations of the complaint must be presumed true and liberally construed in favor of the plaintiff. Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253 (D.C. Cir. 1979).
A. Plaintiff's Complaint Must Be Dismissed Because the Court Lacks Subject Matter Jurisdiction
Defendants argue that this Court lacks subject matter jurisdiction to decide Plaintiff's claims, and that therefore the Complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). In its opening brief, Defendants argue simply that "neither the APA nor the Declaratory Judgment Act [the statutes Plaintiff names in the Amended Complaint] independently vests jurisdiction over the Department of Homeland Security in this Court." While this statement of law is true, see Califano v. Sanders, 430 U.S. 99, 107 (1977) and Skelly Oil Co. v. Philips Petroleum Co., 339 U.S. 667, 671 (1950), the Court must also examine whether jurisdiction is conferred by the statute at the heart of this case, the INA.
Whether this Court has jurisdiction turns on the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"), which amended the INA. The IIRIRA contains a number of provisions limiting the jurisdiction of federal courts and providing that certain determinations regarding immigration status are to be made in the sole discretion of the Executive branch without any judicial review. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, ...