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George v. Napolitano

March 16, 2010


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Binu Kurien George is an alien who complains that the Department of Homeland Security, through its constituent agency, the U.S. Citizenship and Immigration Service ("USCIS"),*fn1 improperly denied his I-485 Application to Adjust Status to Permanent Resident ("I-485 Application"). In essence, Mr. George alleges that USCIS acted arbitrarily and contrary to law by denying his I-485 Application, a violation of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. See id. § 706(2)(A) (allowing reversal of agency action that is arbitrary or capricious). USCIS moves to dismiss. Because Mr. George lacked prior approval of an I-140 Petition for a work visa, the USCIS was compelled to deny his I-485 Application. USCIS's motion to dismiss will be granted.


An alien cannot work in the United States without the appropriate authority from USCIS to do so. One way for an alien to receive permission to work is for an employer to file an I-140 Petition for Alien Worker pursuant to the Immigration and Nationality Act ("INA"), describing the special training or talent of a specific alien and the paucity of available similar workers in the United States. See 8 U.S.C. §§ 1153(b)(2) & 1154(a)(1)(F); 8 C.F.R. § 204.5. Upon approval of an I-140 Petition, the named alien receives a visa which allows him to work for the named employer. An alien with an I-140 visa can then petition for adjustment of his status to that of permanent resident, through a Form I-485 Application to Adjust to Permanent Resident Status. See 8 U.S.C. § 1255.

Mr. George is a citizen of India who lives in Grapevine, Texas. On August 3, 2007, Intuit, Inc., filed an I-140 Petition on behalf of Mr. George. Compl. [Dkt. # 1], Ex. H. On the same date, Mr. George filed an I-485 Application, seeking permanent residency status. Id., Ex. I. Later, Mr. George left Intuit and began working for Renaissance Electronics Corporation. Id. ¶ 46. At that time, the I-140 Petition and the I-485 Application had not been adjudicated. Id. ¶ 45. On July 16, 2008, Intuit withdrew the I-140 petition.*fn2 See id., Ex. K. Because an approved I-140 Petition is a necessary prerequisite to an I-485 Application, USCIS denied Mr. George's I-485 Application. Id. USCIS stated, "In the absence of an approved immigrant visa petition, you are ineligible to adjust status; therefore the Application to Register Permanent Residence or Adjust Status is hereby denied." Id.

Mr. George filed a motion to reconsider, but USCIS denied the motion. Id., Ex. M. Mr. George then asked that USCIS reopen the I-485 Application, in light of his job offer from Renaissance. Id., Ex. N. Mr. George argued that an I-485 Application requires only a "valid" I-140 Petition, but that it did not require an approved I-140. Id., Ex. O. USCIS disagreed and denied the reopened I-485 Application. Id.

Mr. George then filed this suit challenging USCIS's "refusal to adjudicate" Intuit's I-140 Petition, see Compl. ¶ 65, and USCIS's denial of his I-485 Application. USCIS moves to dismiss the claims regarding Intuit's I-140 Petition for lack of jurisdiction and the claims regarding Mr. George's I-485 Application for failure to state a claim. See Fed. R. Civ. P. 12(b)(1) & (6).


A. Lack of Jurisdiction and Standing Requirement

Lack of standing is a defect in subject matter jurisdiction. See Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). A plaintiff's standing under Article III of the United States Constitution must be determined first in order to establish the jurisdiction of the Court to hear the case and reach the merits. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998); Grand Council of the Crees v. FERC, 198 F.3d 950, 954 (D.C. Cir. 2000). "Standing focuses on the complaining party to determine 'whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.'" Am. Legal Found. v. FCC, 808 F.2d 84, 88 (D.C. Cir. 1987) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). "[T]he decision to seek review must be placed in the hands of those who have a direct stake in the outcome, not in the hands of concerned bystanders, who will use it simply as a vehicle for the vindication of value interests." Id. at 91 (internal quotation marks omitted) (quoting Diamond v. Charles, 476 U.S. 54, 61 (1986)).

When reviewing a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a court must review the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F. 3d 1196, 1199 (D.C. Cir. 2004). To determine whether it has jurisdiction over the claim, a court may consider materials outside the pleadings. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005). No action of the parties can confer subject matter jurisdiction on a federal court because subject matter jurisdiction is an Article III and a statutory requirement. Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003). The party claiming subject matter jurisdiction bears the burden of demonstrating that such jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008).

B. Failure to State a Claim

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. A complaint must be sufficient "to give a defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is "plausible on its face." Twombly, 550 U.S. at 570.

A court must treat the complaint's factual allegations as true, "even if doubtful in fact." Id. at 555. But a court need not accept as true legal ...

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