Narambatla v. United States Department of Homeland Security

• Court: District Court, W.D. Washington
• Decided: April 17, 2024
• Docket: 2:23-cv-01275
• Status: Unknown

Opinion

1 2 3

4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 HARSHINI NARAMBATLA, et al., CASE NO. 2:23-cv-01275 9 Plaintiffs, ORDER GRANTING IN PART AND 10 DENYING IN PART MOTION TO v. DISMISS (DKT. # 13) 11 UNITED STATES DEPARTMENT OF 12 HOMELAND SECURITY,

13 Defendant. 14

15 I 16 INTRODUCTION 17 This matter comes before the Court on Defendant’s Motion to Dismiss Pursuant to Fed. 18 R. Civ. P. 12(b)(1) and 12(b)(6). See Dkt. # 13. Plaintiffs are noncitizens1 who reside in the 19 United States and whose immigration petitions were revoked by Defendant United States 20 Department of Homeland Security (DHS). DHS seeks dismissal, arguing that Plaintiffs lack 21 22 1 The Court uses the term “noncitizen” as equivalent to the statutory term “alien.” See, e.g., 23 Nasrallah v. Barr, 140 S. Ct. 1683, 1689 n.2 (2020) (citing 8 U.S.C. § 1101(a)(3)). ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (DKT. # 13) - 1 24 1 standing to assert their claim.2 See Dkt. ## 13, 19. Plaintiffs’ alleged injuries are cognizable, 2 fairly traceable to DHS, and a favorable decision from the Court is likely to redress the alleged 3 injuries. The Court GRANTS in part and DENIES in part the motion. See Dkt. # 13. 4 5 II 6 BACKGROUND 7 The Immigration Act of 1990 created the H-1B visa, which allows an employer in the 8 United States to hire a noncitizen to fill a “specialty occupation” based on a “petition of the 9 importing employer.” See 8 U.S.C. §§ 1101(a)(15)(H)(i)(B), 1184(c)(1). Employers must show 10 that (1) the job they wish to fill requires a highly specialized body of knowledge and a bachelor’s 11 or higher degree in a specific specialty, and that (2) the prospective employee has this requisite 12 degree and knowledge. 8 U.S.C. § 1184(g), (i). 13 There is a limit to the number of H-1B petitions considered by United States Citizenship 14 and Immigration Services (USCIS)3 per year, with a statutory “cap” of 65,000 visas and an 15 additional 20,000 for noncitizens who have earned a master’s or higher degree from a United 16 States institution of higher learning, totaling a per year allocation of 85,000 H-1B visas or grants 17 of status. See 8 U.S.C. § 1184(g). Because the demand for H-1B status exceeds the statutory 18

19 2 As discussed below, during the course of briefing, Plaintiffs conceded that their first three causes of action are now “moot.” Dkt. # 18 at 7. DHS responds that “mootness is not the appropriate 20 framework for viewing these claims because there never was a live case or controversy here.” Dkt. # 19 at 6. Despite the disagreement, because the parties agree that these three claims should be dismissed, this 21 order does so and provides analysis about only the one remaining claim. 3 The Homeland Security Act of 2002 made DHS a parent agency of USCIS. See 6 U.S.C § 101, 22 et seq. Both agencies have the authority to adjudicate and label a noncitizen as inadmissible and construe statutory grounds of inadmissibility. 8 U.S.C. § 1182(a). The parties do not dispute that the acts of 23 USCIS are imputed to its parent agency DHS. ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (DKT. # 13) - 2 24 1 cap, DHS regulations provide rules for the administration of the H-1B cap selection process, 2 commonly known as the “lottery.” See 8 C.F.R. § 214.2(h)(8)(iii); Dkt. # 13-1 at 2 ¶ 4. An 3 employer petitioner must first register for the H-1B cap lottery and be selected and given a “cap 4 number” for a beneficiary-employee, before they are eligible to submit a Form I-129 (Petition for 5 Nonimmigrant Worker) to USCIS on behalf of the beneficiary. 8 C.F.R. § 214.2(h)(8)(iii). 6 In the Form I-129, petitioning employers must show that they are eligible for the 7 requested benefit at the time of filing and must remain eligible through adjudication. 8 C.F.R. 8 103.2(b)(8). “USCIS will approve the request only if the evidence of record establishes both 9 eligibility” and that the “petitioner or applicant warrants a favorable exercise of discretion.” Id. 10 USCIS may make a “request for evidence” or issue “a notice of intent to deny” to the “applicant 11 or petitioner[.]” 8 C.F.R. 103.2(b)(8)(iv). Such a notice “will specify the type of evidence 12 required, and whether initial evidence or additional evidence is required, or the bases for the 13 proposed denial sufficient to give the applicant or petitioner adequate notice and sufficient 14 information to respond.” Id. USCIS may deny a benefit request when an applicant or 15 petitioner’s responsive evidence does not establish eligibility. 8 C.F.R. 103.2(b)(12). If the 16 petitioner or applicant fails to respond to a request for evidence or notice of intent to deny by the 17 required date, the benefit request may be summarily denied as abandoned or based on the record. 18 8 C.F.R. § 103.2(b)(13). 19 USCIS may also send a notice of intent to revoke (NOIR) to a petitioner if it finds the 20 application contains fraud or misrepresents a material fact. 8 C.F.R. § 214.2(h)(11)(iii)(A)(2). 21 The notice must contain a detailed statement of the grounds for revocation and a time period that 22 allows for the petitioner’s rebuttal. 8 C.F.R. § 214.2(h)(11)(iii)(B). 23 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (DKT. # 13) - 3 24 1 If USCIS believes that related entities (such as a parent company, subsidiary, or 2 affiliate) may not have a legitimate business need to file more than one H-1B petition on behalf of the same [noncitizen] . . . USCIS may issue a request for 3 additional evidence or notice of intent to deny, or notice of intent to revoke each petition. If any of the related entities fail to demonstrate a legitimate business need 4 to file an H-1B petition on behalf of the same [noncitizen], all petitions filed on that [noncitizen’s] behalf by the related entities will be denied or revoked. 5 8 C.F.R. § 214.2(h)(2)(i)(G). 6 The employer may submit evidence in rebuttal within 30 days of receipt of the notice. 8 7 C.F.R. § 214.2(h)(11)(iii)(B). The denial or revocation of a petition may be appealed, but an 8 automatic revocation may not be appealed. 8 C.F.R. § 214.2(h)(12). Once a petition is revoked, 9 the visa and cap number are also revoked. See 8 U.S.C. § 1184(g)(3). 10 Plaintiffs are 10 citizens of India who reside in the United States. Dkt. # 8 at 2–3 ¶¶ 1– 11 10. They allege that they were beneficiaries of H-1B visa petitions submitted on their behalf by 12 different petitioning employers. Id. at 19–29 ¶¶ 109–218. Plaintiffs allege that the H-1B 13 petitions submitted on their behalf were approved and visas were issued to them; Plaintiffs say 14 that after these visa approvals, USCIS sent each petitioning employer a NOIR4 as to the H-1B 15 petition, citing fraud or misrepresentation by the employer. Id. According to Plaintiffs, none of 16 the petitioning employers responded to the NOIRs except for employer PRN IT associated with 17 Plaintiff Narambatla, who responded to the NOIR but did not overcome revocation. Id. at 20 ¶ 18 118. Plaintiffs allege that no other petitioning employer responded to the NOIRs related to the 19 20 21 4 The amended complaint states that USCIS issued NOIRs to eight of the 10 petitioning 22 employers but does not specify whether USCIS issued NOIRs to the employers petitioning on behalf of Plaintiffs Kondaveeti and Bhanushali. See Dkt. # 8 at 19–29. The parties do not address these fact issues, 23 which the Court need not analyze here. ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (DKT. # 13) - 4 24 1 remaining Plaintiffs.5 Plaintiffs say that they were not given notice or an opportunity to respond 2 to the NOIRs and USCIS “should have confronted them with derogatory information and 3 allowed Plaintiffs to raise arguments and present facts regarding the provenance of the cap 4 number revocation.” Id. at 36 ¶¶ 261–63. 5 6 The amended complaint brings four causes of action under the Administrative Procedure 7 Act (APA). Id. at 29–36 ¶¶ 219–65. Yet after USCIS officer, Sharon Orise, provided a 8 declaration that DHS does not consider Plaintiffs to be inadmissible under Section 9 212(a)(6)(C)(i) of the Immigration and Nationality Act, see Dkt. # 13-1, Plaintiffs conceded that 10 the first three causes of action should be dismissed. Dkt. # 18 at 7. This leaves just one cause of 11 action for the Court’s consideration: that DHS violated the APA because it “arbitrarily, 12 capriciously and unlawfully revoked Plaintiffs’ protected H-1B cap numbers under 8 U.S.C. § 13 1184(n)(1).” Dkt. # 8 at 35–36 ¶¶ 256–65. DHS says that Plaintiffs lack standing to bring this 14 claim. See Dkt. # 13 at 12–25; Dkt. # 19 at 6–8. 15 III 16 DISCUSSION 17 A. Rule 12(b)(1) 18 Federal Rule of Civil Procedure 12(b)(1) applies to a motion to dismiss for lack of 19 subject matter jurisdiction. The party invoking federal jurisdiction bears the burden of proving 20 it. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). A defendant contesting jurisdiction may 21

22 5 USCIS clarifies that, according to its records, employer Knoviq IT Solutions, LLC also responded to a NOIR related to the petition it submitted for Plaintiff Oleti, but Knoviq IT’s response did 23 not overcome revocation. Dkt. # 13 at 14 n.3. ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (DKT. # 13) - 5 24 1 do so through a “facial attack,” which accepts the truth of the plaintiff’s allegations but asserts 2 that they are “insufficient on their face to invoke federal jurisdiction.” Leite v. Crane Co., 749 3 F.3d 1117, 1121 (9th Cir. 2014) (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 4 (9th Cir.2004)). A court resolves a facial attack as it would a motion to dismiss under Federal 5 Rule of Civil Procedure 12(b)(6), by “[a]ccepting the plaintiff’s allegations as true and drawing 6 all reasonable inferences in the plaintiff’s favor[.]” Id. The court must then determine “whether 7 the allegations are sufficient as a legal matter to invoke the court’s jurisdiction.” Id. (citing Pride 8 v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013)). 9 B. Standing 10 “Article III of the Constitution confines the federal courts to adjudicating actual ‘cases’ 11 and ‘controversies.’” Allen v. Wright, 468 U.S. 737, 750 (1984). The “most important” Article 12 III doctrine requires that a litigant have standing to invoke the power of the federal court. Id. To 13 establish Article III standing, the burden rests on the plaintiff to “clearly allege facts 14 demonstrating” that she “(1) suffered an injury in fact, (2) that is fairly traceable to the 15 challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial 16 decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). To survive a motion to dismiss, a 17 plaintiff must allege “specific facts plausibly explaining” each of the standing requirements. 18 Barnum Timber Co. v. U.S. Env’t Prot. Agency, 633 F.3d 894, 899 (9th Cir. 2011). 19 DHS contends that Plaintiffs lack standing, and thus the Court lacks subject-matter 20 jurisdiction, because Plaintiffs’ alleged injuries are not fairly traceable to DHS and cannot be 21 redressed by a favorable decision of this Court. Dkt. # 13 at 21. Plaintiffs respond that they 22 have been injured by the “lack of notice and meaningful opportunity to respond to DHS’s 23 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (DKT. # 13) - 6 24 1 attempt to take their H-1B cap numbers” and the “loss of [their] H-1B status.” Dkt. # 18 at 18– 2 19. 3 1. Elements one and two: Injury fairly traceable to DHS 4 “To establish an injury in fact, a plaintiff must show that he or she suffered ‘an invasion 5 of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not 6 conjectural or hypothetical.’” Spokeo, 578 U.S. at 339 (quoting Lujan v. Defenders of Wildlife, 7 504 U.S. 555, 560 (1992)). A plaintiff must also allege that these injuries are “fairly traceable” 8 to a defendant’s conduct and “not the result of the independent action of some third party not 9 before the court.” Winsor v. Sequoia Benefits & Ins. Servs., LLC, 62 F.4th 517, 525 (9th Cir. 10 2023) (quoting Namisnak v. Uber Techs., Inc., 971 F.3d 1088, 1094 (9th Cir. 2020)). 11 DHS contends that Plaintiffs have not pleaded a cognizable injury that is fairly traceable 12 to DHS action because USCIS issued NOIRs to the petitioning employers and later made adverse 13 findings against the employers, not Plaintiffs. Dkt. # 13 at 21–22; Dkt. # 13-1 at 5 ¶ 12. 14 According to DHS, USCIS revoked Plaintiffs’ employers’ H-1B cap petition approvals and cap 15 numbers after the petitioning employers failed to respond to the NOIRs or failed to respond with 16 sufficient information to overcome the grounds for revocation. Dkt. # 13 at 21–22. DHS states 17 that the basis for these revocations was that the petitioning employers, not the beneficiaries, 18 included “statement of facts in the application [that were] not true and correct, [] inaccurate, 19 fraudulent, or misrepresented a material fact.” Id. at 22; Dkt. # 13-1 at 4 ¶ 9; 8 C.F.R. 20 214.2(h)(11)(iii)(A)(ii). 21 DHS says that USCIS determined that each petitioning employer “conspired with other 22 companies having joint ownership and/or management or other factors evidencing they were 23 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (DKT. # 13) - 7 24 1 working together, to submit multiple H-1B registrations on behalf of each Plaintiff, to increase 2 the odds that [the] registration submitted for the Plaintiffs would be selected in the lottery, all to 3 the detriment of other registrants and beneficiaries who were playing by the rules.” Dkt. # 13 at 4 22; Dkt. # 13-1 at 4 ¶ 9. DHS states that when USCIS discovered that the petitioning employers 5 had worked with other entities to submit multiple registrations for the same participant, USCIS 6 treated the registration as improperly submitted and designated that petitioning employer as 7 ineligible to submit a petition based on that registration. Dkt. # 13 at 23. 8 Plaintiffs respond that they “have established standing through two distinct injuries.” 9 Dkt. # 18 at 18. They say that the first injury is their lack of notice and meaningful opportunity 10 to respond to the NOIRs because the “lost opportunity is itself a concrete injury[.]” Id. at 18–19 11 (quoting Patel v. U.S. Citizenship & Immigr. Servs., 732 F.3d 633, 638 (6th Cir. 2013)). 12 Plaintiffs contend that the “APA provides a right of an interested party to receive notice of an 13 adjudication.” Id. at 19 (citing 5 U.S.C. § 554(b)). Plaintiffs conclude that DHS “must also 14 provide the individual [beneficiary] with notice of adverse final agency actions.” Id. at 19 (5 15 U.S.C. § 555(e)). 16 Plaintiffs claim that their second injury is USCIS’s revocation of the H-1B cap numbers 17 previously allocated to them, contending that the loss of H-1B status is itself a cognizable injury. 18 Id. at 19 (citing Stellar IT Sols., Inc. v. U.S. Citizenship & Immigr. Servs., No. CV 18-2015 (RC), 19 2018 WL 6047413, at *5 (D.D.C. Nov. 19, 2018)). 20 According to Plaintiffs, their injuries are traceable to DHS action because 21 lawful immigration status and employment depended on maintaining their cap 22 numbers. The prior employers were under no legal obligation to inform Plaintiffs of the agency action revoking their cap numbers. Thus, the unnoticed agency action 23 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (DKT. # 13) - 8 24 1 made Plaintiffs vulnerable to accumulating unlawful status and unauthorized 2 employment. . . . The agency’s procedural errors foreclosed any opportunity for Plaintiffs to raise legal issues and for Defendant to articulate its position on the 3 question of law. 4 Dkt. # 18 at 20. 5 DHS replies that USCIS did not have a duty to provide notice to the beneficiaries 6 of its revocation of the employers’ petitions and of their cap numbers. Dkt. # 19 at 6 7 (citing 8 C.F.R. § 214.2(h)(9)(i), (h)(10)(ii), (h)(11), 8 C.F.R. § 103.2(b)(19); 8 C.F.R. §§ 8 103.2(a)(3), 103.3(a)(1)(iii)(B)). According to DHS, no adverse finding was made 9 against Plaintiffs and “there is nothing preventing [them] from being the beneficiaries of 10 future H-1B registrations or subsequently filed H-1B petitions . . . in the future.” Dkt. # 11 19 at 7. 12 The Ninth Circuit has held that beneficiaries seeking equitable relief regarding 13 agency denial of immigrant visas suffered a cognizable injury in fact to satisfy Article III 14 standing. See, e.g., Abboud v. I.N.S., 140 F.3d 843, 847 (9th Cir. 1998), superseded on 15 other grounds by statute (beneficiary “lost a significant opportunity to receive an 16 immigrant visa” when the agency denied a petition submitted on his behalf” and “[t]his 17 lost opportunity represent[ed] a concrete injury to Abboud that [was] traceable to the 18 [agency’s] conduct and remediable by a favorable decision in this case”); Hsiao v. Scalia, 19 821 F. App’x 680, 683–4 (9th Cir. 2020) (beneficiary “lost a significant opportunity to 20 proceed in the three-step immigration process when the DOL denied the application that 21 was filed on her behalf as the beneficiary”). While the Ninth Circuit has not yet held that 22 a nonimmigrant beneficiary has Article III standing in this context, the Court does not see 23 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (DKT. # 13) - 9 24 1 how this distinction makes a legal difference on the question of Article III standing. See 2 Tenrec, Inc. v. U.S. Citizenship and Immigrs. Servs., No. 3:16-cv-995-SI, 2016 WL 3 5346095, *4–5 (D. Or. Sep. 22, 20216) (“The Ninth Circuit has found Article III standing 4 for immigrant visa petition beneficiaries, but has not yet ruled on whether beneficiaries 5 for nonimmigrant visa petitions have Article III standing. The Court finds more 6 applicable and persuasive the reasoning of cases showing that visa petition beneficiaries 7 have standing.”). 8 In addition, at least three circuit courts have held that the lack of notice to a beneficiary 9 about agency revocation of an immigrant petition constitutes an injury that is fairly traceable to 10 the agency itself. See Mantena v. Johnson, 809 F.3d 721, 731 (2d Cir. 2015) (“Mantena pled an 11 injury-in-fact that would be traceable to failed notice. The revocation of Mantena's employer's I– 12 140 petition (and subsequent automatic denial of her I–485 application) ended Mantena’s 13 multiyear attempt to secure a green card.”); Kurapati v. U.S. Bureau of Citizenship & Immigr. 14 Servs., 775 F.3d 1255, 1260 (11th Cir. 2014) (“Under the test for constitutional standing 15 [plaintiffs] suffered an injury-in-fact from USCIS’s revocation of the I–140 visa petitions— 16 namely, the deprivation of an opportunity to apply for adjustment of status—which is fairly 17 traceable to USCIS and would be redressable by a favorable decision.”); Patel, 732 F.3d at 637– 18 38 (plaintiff alleged a cognizable injury in fact because he “lost a significant opportunity to 19 receive an immigrant visa” when the agency denied his employer’s petition “on grounds that 20 [plaintiff said] were arbitrary”); Musunuru v Lynch, et al., 831 F.3d 880, 882 n.1 (7th Cir. 2016). 21 Here, as in Mantena, Kurapati, and Patel, Plaintiffs’ loss of H-1B status and their lack of 22 notice in the NOIR process are cognizable injuries that are concrete, particularized, and traceable 23 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (DKT. # 13) - 10 24 1 to DHS’s revocation of their legal nonimmigrant status. See Stellar IT, 2018 WL 6047413, at *5 2 (“Though [plaintiff] was merely the beneficiary of the H-1B petition that [his employer] filed on 3 his behalf, he has standing to bring a judicial challenge to USCIS’s denial of the petition. He has 4 suffered an injury-in-fact—the loss of his legal nonimmigrant status—that is traceable to 5 USCIS's denial of the petition and redressable by a favorable ruling in this Court.”); Rossville 6 Convenience & Gas, Inc. v. Garland, No. 20-2218-JDB, 2021 WL 5865446, *7 (D.D.C. Dec. 12, 7 2021); Khedkar v. U.S. Citizenship and Immigr. Servs., 552 F. Supp. 3d 1, *9 (D.D.C. 2021). 8 Although USCIS also contests the causation element of the standing analysis by 9 suggesting that the beneficiaries’ injuries stem from the fraudulent actions taken by the 10 petitioning employers and from the USCIS revocations, see Dkt. # 19 at 7, this consideration is 11 irrelevant to the Article III standing analysis at hand. While DHS contends that the real harm 12 comes from the petitioning employers’ lack of response to the NOIRs or inability to overcome 13 the revocation allegations, see Dkt. # 13 at 21–22; Dkt. # 19 at 8, the Court notes that Plaintiffs’ 14 alleged injuries—their lack of participation in the NOIR process and loss of legal status—would 15 not have occurred but for DHS’s revocation. The Court concludes that Plaintiffs’ lack of notice 16 in revocation proceedings and loss of an opportunity to receive a nonimmigrant visa is an injury 17 in fact that is fairly traceable to DHS. See Patel, 732 F.3d at 638; see also Shalom Pentecostal 18 Church v. Acting Sec’y U.S. Dep’t of Homeland Sec., 783 F.3d 156, 162 (3d Cir. 2015) (the 19 beneficiary of immigrant petition, Form I-360, demonstrated an injury in fact when he lost a 20 significant opportunity to receive an immigrant visa). 21 22 23 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (DKT. # 13) - 11 24 1 2. Element three: Redressability 2 To establish redressability, a plaintiff must allege that it is “likely, as opposed to merely 3 speculative,” that a favorable decision will redress the alleged injuries. Skyline Wesleyan Church 4 v. Cal. Dep’t of Managed Health Care, 968 F.3d 738, 749 (9th Cir. 2020) (quoting Friends of the 5 Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)). 6 DHS says that Plaintiffs’ injuries are not redressable. Dkt. # 13 at 24–25; Dkt. # 18 at 7– 7 8. According to DHS: 8 the only way [Plaintiffs’] visas and cap numbers can be restored is if the underlying 9 petitions are reopened and approved, because issuance of a visa and cap number requires an approved petition. 8 U.S.C. 1184(c)(1) (“petition shall be made and 10 approved before the visa is granted”). Plaintiffs do not challenge the revocation of the H-1B cap petition approvals or the findings of fraud or misrepresentation 11 underlying those revocations. Thus, the injury Plaintiffs allege—loss of their H- 1B cap numbers—is not likely to be redressed by a favorable decision from this 12 court because USCIS revoked the underlying petitions. 13 Dkt. # 13 at 25 (citing cases). 14 Plaintiffs respond that “restoring [their] cap-number, lawful presence, and admissibility 15 will redress [DHS’s] actions.” Dkt. # 18 at 20. According to Plaintiffs, “redress need not require 16 the Court to restore the original petition in perpetuity”; instead Plaintiffs ask that the Court 17 vacate the “cap number revocations, pending a new NOIR” to allow them “to understand their 18 rights to remain the United States and change to a different nonimmigrant status if necessary.” 19 Id. at 20–21. 20 The Court concludes that Plaintiffs have pleaded a redressable injury in fact. They allege 21 two injuries: (1) the lack of notice from USCIS about their revocation proceedings and (2) the 22 loss of their nonimmigrant visa status. See id. at 18–20. Plaintiffs do not challenge the basis for 23 ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (DKT. # 13) - 12 24 1 their revocations but challenge their lack of notice and participation in the NOIR process, 2 alleging that DHS’s was actions were unlawful, arbitrary, and capricious and violated the APA. 3 Dkt. # 8 at 36 ¶ 265. 4 5 At the pleading stage, Plaintiffs need only allege “specific facts plausibly explaining” 6 each of the standing requirements. Barnum, 633 F.3d at 899. The APA allows the Court to 7 “compel agency action unlawfully withheld or unreasonably delayed” and may “hold unlawful 8 and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious an 9 abuse of discretion, or otherwise not in accordance with law[.]” 5 U.S.C. § 706. The issue at 10 hand is whether the Court can redress the injuries for purposes of standing and the Court makes 11 no determination on the merits of Plaintiffs’ claims. See Tenrec, 2016 WL 5346095 at *11 n.8 12 (“The Court makes no determination regarding the merits of Plaintiffs' claims. Redressability 13 considers whether a court order can redress the plaintiffs' claims for purposes of standing and not 14 whether the plaintiffs have stated a claim or will prevail on those claims on the merits.”). 15 Because the APA may provide a judicial remedy for Plaintiffs’ alleged injuries, Plaintiffs’ 16 alleged harm is redressable. See Patel, 732 F.3d at 638; Kurapati, 775 F.3d at 1260; Parcha v. 17 Cuccinelli, No. 4:20-CV-015-SDJ, 2020 WL 607103, at *4 (E.D. Tex. Feb. 7, 2020).6 18 19 20

21 6 Plaintiffs also contend that they are within the “zone of interests” of the statute in question and have prudential standing. Dkt. # 18 at 21 (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 22 572 U.S. 118, 126-27 (2014); Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012)). Because DHS does oppose this position, the Court shall not address it here. See 23 Dkt. # 19 at 8. ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS (DKT. # 13) - 13 24 1 IV CONCLUSION For the reasons stated above, the Court GRANTS in part and DENIES in part the motion to dismiss. The Court DISMISSES Plaintiffs’ first three causes of action with prejudice. See ° Dkt. # 8 at 29-34 J§ 219-55. But the Court concludes that Plaintiffs’ have Article III standing to ° bring their remaining claim. See Dkt. # 13 at 35-36 4] 256-65. Dated this 17th day of April, 2024. 8 9 C]eh~ Chan John H. Chun 10 United States District Judge 1] 12 13 14 15 16 17 18 19 20 21 22 23 ORDER GRANTING IN PART AND DENYING IN 4 PART MOTION TO DISMISS (DKT. # 13) - 14