United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
Xinis United States District Judge.
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. 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.
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.
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.
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.
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.
STANDARD OF REVIEW
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).
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)).
Counts I, II, IV
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).
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 ...