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Ahlijah v. Nielsen

United States District Court, D. Maryland

July 10, 2018

JEREMY AHLIJAH, Plaintiff,
v.
KIRSTJEN NIELSEN, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Paula Xinis United States District Judge.

         Pending before the Court in this administrative procedure action is the Motion to Dismiss for Lack of Subject Matter Jurisdiction filed by Defendants Kirstjen Nielsen, L. Francis Cissna, Jeff Sessions, Robert Hur, Barbara Velarde, Michael Paul, and Ronald Vitiello (hereinafter, “Defendants”), in their official government capacities.[1] ECF No. 25. The matter is fully briefed, and no hearing is necessary. See D. Md. Loc. R. 105.6. Upon consideration of the parties' arguments, the Court GRANTS Defendants' Motion to Dismiss, ECF No. 25, and DENIES as moot Ahlijah's motion to appoint counsel, ECF No. 24.

         I. BACKGROUND

         On June 1, 1986, Plaintiff Jeremy Ahlijah (“Ahlijah”), a citizen and national of Cameroon, entered the United States on an F-1 student visa. ECF No. 5 at 2. In 2004, Ahlijah married a United States citizen, Denette Denise Lawson, and applied for a status adjustment under the Immigration and Nationality Act (“INA”). ECF Nos. 5 at 2 & 30-3 at 2. His request was denied. ECF No. 5 at 2. On August 2, 2013, Ahlijah filed a Form I-360 Petition for Amerasian, Widow(er) or Special Immigrant status. ECF No. 5 at 2. Ahlijah filed this petition seeking classification as an abused spouse of an American citizen. ECF No. 25-1 at 4.

         Parties filing Form I-360 Petitions bear the burden of proving their eligibility for the benefit. ECF No. 25-1 at 5. While reviewing Ahlijah's petition, United States Citizenship and Immigration Services (“USCIS”) discovered that in 2005, Ahlijah pled guilty to fifth degree criminal sexual conduct under Minnesota Statute 609.3451.1. ECF No. 5-2 at 1-2. The USCIS investigation also uncovered five additional arrests in the state of Delaware for offensive touching, assault, and breach of release. ECF No. 25-2 at 2. Considering his criminal history and arrest record, USCIS issued a Request for Evidence (“RFE”) to further investigate Ahlijah's conduct. ECF No. 25-1 at 5. Ahlijah complied with the request and turned over additional documentation, including affidavits and criminal history records from South Carolina and Delaware. ECF No. 25-2 at 3.

         On June 24, 2014, USCIS denied Ahlijah's I-360 Petition on the grounds that he did not meet the good moral character standard required of a self-petitioner. ECF No. 25-1 at 4-5. USCIS's conclusion was based on findings that Ahlijah's Minnesota conviction was for a crime involving moral turpitude, and his five subsequent arrests were evidence of behavior contrary to that of the average citizen in the community. ECF No. 25-1 at 5-6.

         After a string of motions for reconsideration - and subsequent denials - Ahlijah filed his Complaint in this Court on August 2, 2017. ECF No. 5 at 6-7. On September 22, 2017, after reviewing Ahlijah's complaint, USCIS reopened Ahlijah's case. See ECF No. 10-1. USCIS again issued an RFE asking Ahlijah to produce more documentation of good moral character. See generally ECF No. 10-2. Ahlijah submitted no new evidence. ECF No. 25-1 at 6. On January 31, 2018, USCIS issued a final decision denying Ahlijah's Form I-360 Petition filed in August 2013. See ECF No. 25-2. Removal proceedings are ongoing. ECF No. 25-1. On February 5, 2018, Defendants filed the pending motion to dismiss the Complaint. Also pending is Ahlijah's motion to appoint counsel. For the following reasons, Defendants' motion to dismiss, ECF No. 25, is GRANTED, and Ahlijah's motion to appoint counsel, ECF No. 24, is DENIED as moot.

         II. STANDARD OF REVIEW

         Motions to dismiss for lack of subject matter jurisdiction challenge a court's authority to hear a matter. See Davis v. Thompson, 367 F.Supp.2d 792, 799 (D. Md. 2005). A plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (citations omitted). If “a claim fails to allege facts upon which the court may base jurisdiction, ” the court must dismiss the action for lack of subject-matter jurisdiction. Davis, 367 F.Supp.2d at 799 (citation omitted).

         When reviewing a plaintiff's standing to pursue an action, the court takes as true all factual allegations in the complaint and makes all reasonable inferences in the plaintiff's favor. Pennell v. City of San Jose, 485 U.S. 1, 7 (1988); accord Senior Execs. Ass'n v. United States, No. 12-cv-2297, 2013 WL 1316333, at *13 (D. Md. Mar. 27, 2013); Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D.Md.2003). Further, “the court may look beyond the pleadings and the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Id. (citing Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993) (quotation marks omitted); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). However, “the burden of establishing standing ‘lies squarely on the party claiming subject matter jurisdiction.' ” Mirant Potomac River, LLC v. EPA, 577 F.3d 223, 226 (4th Cir. 2009) (quoting Frank Krasner Enters. Ltd. v. Montgomery Cnty., 401 F.3d 230, 234-35 (4th Cir. 2005)).

         III. DISCUSSION

         A. Counts I, II, IV

         Under the Administrative Procedure Act (“APA”), a federal court may only review final agency actions. 5 U.S.C. § 704. An agency action is final when it is the “consummation of the agency's decisionmaking [sic] process, ” and when “rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-18 (1997) (internal quotes and citations omitted). By contrast, the Court retains no authority to review non-final actions and must instead dismiss for lack of subject matter jurisdiction. See Invention Submission Corp. v. Rogan, 357 F.3d 452, 460 (4th Cir. 2004).

         Here, Counts I, II, and IV challenge non-final agency actions and so must be dismissed for lack of subject matter jurisdiction. Count I of the Amended Complaint contests Defendants' denial of a I-360 Petition filed in August 2013 and then denied on June 24, 2014. ECF No. 5 at 4-7. However, the June 2014 denial was not the final agency action in the matter. After Ahlijah filed his initial ...


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