The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiffs LanceSoft, Inc. ("LanceSoft") and Lakshmi Ramana Mulla ("Mulla") have sued the United States Citizenship and Immigration Services ("USCIS"), alleging that defendant acted arbitrarily and capriciously in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), by failing to explain its actions. Plaintiffs also allege that defendant has unlawfully withheld or unreasonably delayed agency action, and thus, they seek to compel such action under the APA, 5 U.S.C. § 706(1), and the Mandamus Act, 28 U.S.C. § 1361. Before the Court is defendant's motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. As explained herein, the Court will grant defendant's motion.
The material facts of this case are not in dispute. On December 8, 2006, LanceSoft filed a Form I-140 Immigration Petition for Alien Worker with USCIS' Texas Service Center ("TSC") seeking to classify Mulla as a skilled or professional worker under section 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(3). (Am. Compl. ¶ 7.) On August 15, 2007, TSC's Director ("Director") issued a Notice of Intent to Deny LanceSoft's petition, and three months later, having received no response from LanceSoft, denied the petition on the grounds of abandonment. (Def.'s Second Mot. to Dismiss at 2.) In response, LanceSoft filed a Form I-290B Notice of Appeal or Motion. (Id.) See 8 C.F.R. §§ 103.3(a)(2)(i), 103.5(a)(1)(iii). The form directs petitioners to identify the nature of their appellate challenge by "check[ing] one box" next to one of six statements.*fn1 (Def.'s First Mot. to Dismiss Ex. 2, at 1.) LanceSoft checked the box corresponding to the statement "I am filing a combined motion to reopen and reconsider a decision. My brief and/or additional evidence is attached." (Id.) LanceSoft explained that it had relocated from Lisle, Illinois to Herndon, Virginia, and had never received defendant's August 15, 2007 Notice of Intent to Deny. (Id. at 3.)
On January 3, 2008, the Director issued a notice to LanceSoft's newly identified Herndon, Virginia address stating that LanceSoft's motion to reopen would be granted on grounds that the TSC was experiencing an extensive processing backlog and may not have processed any change of address reported by LanceSoft. (Id. Ex. 3.) However, the notice admonished that "approval of the petition depends on a positive response to this Intent to Deny" and instructed LanceSoft to submit certain evidence regarding plaintiff Mulla's educational background to USCIS. (Id.) Specifically, the notice requested a "copy of beneficiary's degree(s), transcripts of credits, and evidence that his foreign degree(s) is (are) equivalent to a degree from a United States college or university." (Id.)
On March 5, 2008, having still not received the requested evidence, the Director again denied LanceSoft's I-140 petition on grounds of abandonment.*fn2 (Id. Ex. 5.) LanceSoft again filed a Form I-290B Notice of Appeal or Motion, this time checking the box corresponding to the statement "I am filing an appeal. My brief and/or additional evidence is attached." (Id. Ex. 6, at 1.) LanceSoft stated that it had never received the January 3, 2008 Notice of Intent to Deny and enclosed an affidavit from its receptionist indicating that, "[d]uring January 2008, I had a duty to open incoming mail and distribute to all departments[.] [A]s far as I can recollect, I did not open any incoming mails from USCIS Texas Service Center on Mr. Mulla's Immigration Petition." (Id. at 2, 14.) On these grounds, LanceSoft asked that its "[a]ppeal to the Commissioner" be accepted and its I-140 petition be reopened. (Id. at 2.)
The TSC Director did not issue a decision on LanceSoft's appeal, but instead forwarded it to USCIS' Administrative Appeals Office ("AAO"), which denied the appeal on November 18, 2008, stating As correctly noted by the director, the petitioner may not appeal a denial due to abandonment. 8 C.F.R. § 103.2(b)(15). Furthermore, a decision made as a result of a motion may be appealed to the AAO only if the original decision was appealable to the AAO. 8 C.F.R. § 103.5(a)(6). Accordingly, the AAO must reject the appeal for lack of jurisdiction. See 8 C.F.R. § 103.3. (Am. Compl. ¶¶ 12-14; Def.'s Second Mot. to Dismiss at 5.)
On May 15, 2010, nearly one and a half years later, plaintiffs filed suit against USCIS. In their Amended Complaint, plaintiffs assert two claims. First, they claim that USCIS had a duty to treat their Form I-290B as a motion to reopen and render decision on it accordingly. They ask that the Court compel such agency action under the Mandamus Act, 28 U.S.C. § 1361, and the APA, 5 U.S.C. § 706(1). (Am. Compl. ¶¶ 23-27.) Second, they claim that the TSC Director acted arbitrarily and capriciously under APA § 706(2)(A) by failing to explain his decision to forward LanceSoft's appeal to the AAO rather than exercise his discretion under 8 C.F.R. § 103.3(a)(2)(iii) to treat it as a motion to reopen or reconsider and take favorable action. (Id. ¶¶ 14-16.)
Defendant has moved to dismiss plaintiffs' complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
A. Federal Rule of Civil Procedure 12(b)(1)
Federal courts have limited jurisdiction and may not presume the existence of jurisdiction in order to decide a case on other grounds. Tuck v. Pan Am. Health Org., 668 F.2d 547, 549 (D.C. Cir. 1981). Instead, the party claiming subject matter jurisdiction bears the burden of demonstrating that jurisdiction exists. Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). In ruling on a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), a court may, where necessary, "consider the complaint supplemented by undisputed facts evidenced in the record, or the ...