The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Frederick Mawalla is an alien who complains that the Department of Homeland Security ("DHS"), through its constituent agency, the U.S. Citizenship and Immigration Service ("USCIS"), improperly denied his Application to Adjust Status to Permanent Resident. Defendants move for summary judgment, which Mr. Mawalla opposes through his counsel. Because USCIS's denial of Mr. Mawalla's application was based on a pure question of law, not on the exercise of discretion, review is available under the Administrative Procedure Act, 5 U.S.C. §§ 701-706, which allows reversal of agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). USCIS's decision, however, was legally sound and Defendants are therefore entitled to judgment as a matter of law.
The facts are presented in Defendants' Statement of Material Facts With Respect to Which There Is No Genuine Issue ("Defs.' Facts") (Dkt. # 7-1), to which Mr. Mawalla makes no objection. On May 15, 2002, Intelsat Global Service Corporation filed an Immigrant Visa Petition (Form I-140) for Mr. Mawalla, pursuant to section 203(b)(2) of the Immigration and Nationality Act ("INA"). Defs.' Facts ¶ 1. USCIS approved the I-140 on October 31, 2002, thereby allowing Mr. Mawalla to work for Intelsat. Id. ¶ 2.
On April 29, 2004, Mr. Mawalla filed a Form I-485, Application to Adjust Status to Permanent Resident. Id. ¶ 3. On September 17, 2004 - 141 days later - USCIS received a letter from Intelsat stating that Mr. Mawalla was no longer employed by Intelsat and that it wanted to withdraw its I-140 petition on his behalf. Id. ¶ 4. On March 11, 2005, USCIS advised Intelsat that the I-140 petition had been automatically revoked as of the date of its initial approval (October 31, 2002), pursuant to 8 C.F.R. § 205.1(a)(3)(iii)(C). Id. ¶ 5. On that same day, USCIS sent to Mr. Mawalla a Notice of Intent to Deny ("NOID") his I-485 application because there was no longer a visa immediately available to him and he was, therefore, ineligible for adjustment of status. Id. ¶ 6. The NOID stated that the American Competitiveness in the Twenty-First Century Act of 2002 ("AC21") Section 106(C) (codified at 8 U.S.C. § 1154(j)), would still permit Mr. Mawalla to adjust his status to that of permanent resident if his I-485 application "has been pending for 180 days or more and [he] can establish that [he] ha[s] a bona fide offer of employment from a new employer in a same or similar occupation." Id. ¶ 7; Admin. Record ("AR") at 261.
Mr. Mawalla responded on April 6, 2005, requesting that his I-485 application be considered under AC21. Defs.' Facts ¶ 8. He included an offer of employment from Bethesda Asphalt & Bituminous Company for the position of Testing Engineer. Id. USCIS denied Mr. Mawalla's I-485 application on June 29, 2005 because the I-485 had been pending for a period of less than 180 days when the withdrawal of the I-140 was requested by Intelsat on September 17, 2004. Id. ¶ 9. Without a valid I-140 visa petition, Mr. Mawalla was deemed ineligible to receive an adjusted status under AC21. Id.
Mr. Mawalla filed a Motion to Reopen and/or Reconsider on July 18, 2005. Id. ¶ 10. USCIS dismissed the motion on August 29, 2005 on the ground that Mr. Mawalla failed to provide new facts or demonstrate that the decision was based on an incorrect application of the law. Id. ¶ 11. On September 27, 2005, Mr. Mawalla filed another Motion to Reopen and/or Reconsider regarding the revocation of the Form I-140, but USCIS dismissed that motion on March 13, 2006 for the same reason it dismissed the previous motion. Id. ¶¶ 12-13.
Mr. Mawalla filed this action on March 30, 2006. He challenges USCIS's June 29, 2005 denial of his I-495 Application for Adjustment and asks the Court to enter judgment ordering DHS to adjust his status to a lawful permanent resident. Defendants moved for summary judgment on June 21, 2006. That motion has now been fully briefed and is ripe for decision.
A. Summary Judgment - Rule 56
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson, 477 U.S. at 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position, id. at 252, and may not rely solely on allegations or conclusory statements, Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
B. Lack of Subject Matter Jurisdiction - Rule 12(b)(1)
Defendants have also moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The Court must accept as true all of the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff's favor. See Alexis v. District of Columbia, 44 F. Supp. 2d 331, 336-37 (D.D.C. 1999). But because a Rule 12(b)(1) motion challenges the court's power to hear the claim, the court must give the ...