United States District Court, D. Maryland
Alain Abdo, et al.
Rex W. Tillerson, et al.
before the Court are Defendants Rex W. Tillerson, Marcia
Pryce, Elaine Duke, James McCament, Kathy A. Baran, and
Jefferson B. Sessions, III's Motion to Dismiss (ECF No.
10). The Motion is ripe for disposition, and no hearing is
necessary. See Local Rule 105.6 (D.Md. 2016). For
the reasons outlined below, the Court will grant the Motion.
9, 2010, Plaintiff Alain Abdo, M.D. entered the United States
as a nonimmigrant alien exchange visitor under a J-1 visa
under 8 U.S.C. § 1101(a)(15)(J) (2018). (Compl. ¶
25, ECF No. 1). Dr. Abdo came to the United States to
participate in a residency program in general surgery
sponsored by the Educational Commission for Foreign Medical
Graduates. (Id. ¶¶ 21, 25, 26). Twelve
days later, Plaintiff Maha Akiki entered the United States
under a J-2 nonimmigrant exchange visitor visa as a result of
Dr. Abdo's J-1 visa. (Id. ¶ 85). Dr. Abdo
and Akiki got married in 2012. (Id. ¶¶
28). They had a daughter, M.A., in 2013 and a son, Plaintiff
J.A., in 2015; both were born in the United States.
(Id. ¶¶ 29, 30).
U.S.C. § 1182(e) (2018) provides that after finishing
his training, the alien exchange student must return to his
home country for at least two years. Nonetheless, §
1182(e) permits waivers of the two-year foreign residency
requirement under certain limited circumstances. Of import
here, § 1182(e) permits waivers “upon the
favorable recommendation” of the United States
Department of State, pursuant to the request of the Director
of the relevant service center of the United States
Citizenship and Immigration Services (“USCIS”).
§ 1182(e). The Director makes a request if she
determines that leaving the United States would “impose
exceptional hardship upon the alien's spouse or
child” if either is an American citizen. Id.
April 4, 2016, Dr. Abdo submitted an application to USCIS for
an exceptional hardship waiver of the two-year foreign
residency requirement. (Compl. ¶ 41). In his
application, Dr. Abdo asserted that returning to Lebanon, his
home country, for two years would cause an exceptional
hardship for his two children, who were American citizens.
(Id. ¶¶ 43-45). The Department of State,
in a letter sent to USCIS on February 27, 2017, recommended
that USCIS deny the application because “[t]here's
a need for trained medical professionals in General
Surgery” in Lebanon “as evidenced by the Letter
of Need” from its government. (Mot. Dismiss Ex. B, ECF
No. 10-3). Accordingly, USCIS denied Dr. Abdo's
application. (See Compl. ¶ 102).
filed the present action on April 17, 2017. (ECF No. 1). In
their nine-count Complaint, they bring claims under the
Administrative Procedure Act (“APA”), 5 U.S.C.
§ 500 et seq. (2018) (Counts I-II); the Due
Process Clause of the Fourteenth Amendment to the United
States Constitution (Counts III-V); Failure to Follow More
Relaxed Adjudication Standard Intended by Congress (Count
VI); Failure to Provide Reasoned Analysis Describing a Marked
Change in Policy in the Adjudication of ECFMG-Sponsored I-612
Hardship Waiver Cases (Count VII); Violation of Treaty (Count
VIII); and Declaratory Judgment (Count IX). (Compl.
¶¶ 101-160). Plaintiffs seek declaratory judgments,
injunctive relief, and attorneys' fees and costs.
(Id. at 31-32).
now move to dismiss each claim for lack of subject-matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
(ECF No. 10). Plaintiffs filed an Opposition on September 7,
2017. (ECF No. 11). Defendants filed a Reply on October 2,
2017. (ECF No. 14).
12(b)(1) governs motions to dismiss for lack of
subject-matter jurisdiction. Defendants challenging a
complaint under Rule 12(b)(1) may advance a “facial
challenge, asserting that the allegations in the complaint
are insufficient to establish subject matter jurisdiction, or
a factual challenge, asserting ‘that the jurisdictional
allegations of the complaint [are] not true.'”
Chambliss v. Carefirst, Inc, 189 F.Supp.3d 564, 568
(D.Md. 2016) (alteration in original) (quoting Kerns v.
United States, 585 F.3d 187, 192 (4th Cir. 2009)).
as here, defendants raise a facial challenge, the court
affords the plaintiff the “the same procedural
protection as he would receive under a Rule 12(b)(6)
consideration.” Kerns, 585 F.3d at 192
(quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th
Cir. 1982)). As such, the court must examine the complaint as
a whole, consider the factual allegations in the complaint as
true, and construe the factual allegations in the light most
favorable to the plaintiff. Albright v. Oliver, 510
U.S. 266, 268 (1994); Lambeth v. Bd. of Comm'rs of
Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005) (citing
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
seek judicial review under the APA of Defendants'
decision to deny Dr. Abdo's exceptional hardship waiver
application. The APA provides standing for review for any
party that is “adversely affected or aggrieved by
agency action within the meaning of the relevant
statute.” 5 U.S.C. § 702 (2018). Such review is
nevertheless subject to several limitations, including
decisions “committed to agency discretion by
law.” § 701(a)(2). Section 702(a)(2) bars review
if courts “‘would have no meaningful standard
against which to judge the agency's exercise of
discretion' because the statute has ‘committed the
decisionmaking to the agency's judgment
absolutely.'” Int'l Refugee Assistance
Project v. Trump, 883 F.3d 233, 286-87 (4th Cir.),
as amended, (Feb. 28, 2018) (quoting Heckler v.
Chaney, 470 U.S. 821, 830 (1985)).
Defendants argue that § 702(a)(2) forecloses judicial
review of Defendants' decision to deny Dr. Abdo's
exceptional hardship waiver application. The Court agrees.
the District of Maryland, nor the Fourth Circuit, have spoken
on whether § 702(a)(2) bars judicial review of a
decision to deny an exceptional hardship waiver. Still, of
the six circuit courts that have expressly decided the issue,
five held that it does. Compare Korvah v. Brown, 66
F.3d 809, 812 (6th Cir. 1995) (holding that a district court
lacks subject-matter jurisdiction to review a decision not to
recommend an exceptional hardship waiver); Singh v.
Moyer, 867 F.2d 1035, 1039 (7th Cir. 1989) (same);
Slyper v. Att'y Gen., 827 F.2d 821, 824 (D.C.
Cir. 1987) (same); Dina v. Att'y Gen. of U.S.,
793 F.2d 473, 476 (2d Cir. 1986) (same); Abdelhamid v.
Ilchert, 774 F.2d 1447, 1450-51 (9th Cir. 1985) (same),
with Chong v. Dir., U.S. Info. Agency, 821 F.2d 171,
176 (3d Cir. 1987) (holding that denial of an exceptional
hardship waiver is subject to judicial review only for abuse
of discretion of agency guidelines).
Court is persuaded by the majority rule. Thus, the Court
concludes that Defendants' decision to deny Dr.
Abdo's exceptional hardship waiver application is not
subject to judicial review because under § 702(a)(2),
there is no “no meaningful standard against which to
judge” Defendants' decision to deny the
application. Int'l Refugee Assistance Project,
883 F.3d at 286-87. Accordingly, the Court will grant the
foregoing reasons, Defendants' Motion to Dismiss (ECF No.
10) is GRANTED. Despite the informal nature of this
memorandum, it shall constitute an Order of the Court, and
the Clerk ...