UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
AJAY NAIDU RAVULAPALLI, et al.,
Plaintiffs,
v. Civil Action No. 10–447 (CKK) JANET NAPOLITANO, Secretary, U.S. Department of Homeland Security, et al.,
Defendants.
MEMORANDUM OPINION (March 29, 2011)
Plaintiffs Ajay Naidu Ravulapalli and Lakshmi Alekhya Ravulapalli (collectively,
“Plaintiffs”) bring this action against Defendants Janet Napolitano, Secretary of the Department
of Homeland Security, Alejandro Mayorkas, Director of U.S. Citizenship and Immigration
Services (“USCIS”), and David L. Roark, Director of the USCIS Texas Service Center, in their
official capacities (collectively, “Defendants”). Plaintiffs contend that Defendants unlawfully
denied their applications to adjust their immigration status in violation of federal law and
preexisting USCIS policy. Plaintiffs assert causes of action under the Administrative Procedure
Act, 5 U.S.C. § 551 et seq. (“APA”), the Mandamus Act, 28 U.S.C. § 1361, and the Fifth
Amendment to the U.S. Constitution. Presently pending before the Court is Defendants’ [8]
Motion to Dismiss or, in the Alternative, to Transfer. For the reasons explained below, the Court
shall GRANT-IN-PART and DENY-IN-PART Defendants’ motion to dismiss and DENY
Defendants’ alternative motion to transfer. I. BACKGROUND
A. Statutory and Regulatory Background
The Immigration and Nationality Act, codified in Title 8 of the U.S. Code and its
accompanying regulations, sets out a three-step process by which an alien living in the United
States may become a permanent resident based on an employment opportunity. First, the
employer seeking to hire the alien must apply to the Department of Labor for certification that
the issuance of an employment-based visa and admission of the alien worker to the United States
will not have an adverse effect on the American work force. See 8 U.S.C. § 1182(a)(5)(A)(i). If
the Department of Labor grants this certification, the employer may then file a petition to have
the alien worker classified according to one of several preference categories, such as aliens who
are members of professions holding advanced degrees whose skills will benefit the economy.
See id. § 1153(b) & 1154(a)(1)(F). The employer files this petition by submitting a Form I-140
Immigrant Petition for Alien Worker (“Form I-140” or “I-140 petition”), to USCIS. See 8 C.F.R.
§ 204.5. The alien is considered the “beneficiary” of the I-140 petition.
The third step is for the employee beneficiary to file an application to adjust his or her
status to become a lawful permanent resident. See 8 U.S.C. § 1255. This application is filed on
a Form I-485, Application to Register Permanent Residence or Adjust Status (“Form I-485” or
“I-485 application”). An approved I-140 petition is a prerequisite to the approval of an I-485
application. See 8 U.S.C. § 1255(a). The spouse of an employee beneficiary may also file an I-
485 application based on the marital relationship. 8 U.S.C. § 1553(d). Prior to July 31, 2002, an
alien worker could not file a Form I-185 until the underlying Form I-140 had been approved.
See 8 C.F.R. § 245.2(a)(2)(i) (2000) (“Before an application for adjustment of status under
2 section 245 of the Act may be considered properly filed, a visa must be immediately available. If
a visa would be immediately available upon approval of a visa petition, the application will not
be considered properly filed unless such petition has first been approved.”). An employer may
withdraw an I-140 petition at any time while it is pending or after it is approved until the
beneficiary is granted adjustment of status based on the petition. 8 C.F.R. § 103.2(b)(6).
In 2000, Congress passed the American Competitiveness in the Twenty-First Century Act
of 2000, Pub. L. No. 106-313, 114 Stat. 1251 (“AC21”). Section 106(c) of AC21 provides that
an I-140 petition “for an individual whose application for adjustment of status pursuant to section
245 has been filed and remained unadjudicated for 180 days or more shall remain valid with
respect to a new job if the individual changes jobs or employers if the new job is in the same or
similar occupational classification as the job for which the petition was filed.” 114 Stat. at 1254;
8 U.S.C. § 1154(j). This provision, known generally as the “Portability Provision,” was designed
to provide job flexibility for applicants whose visas had been approved but whose applications
for adjustment of status were not adjudicated in a timely fashion. Immediately after AC21 went
into effect, an alien who obtained an employment-based visa petition based on an approved Form
I-140 submitted by an employer could file an I-485 application and, if the application was not
approved within 180 days, switch to another job within the same field without fear that the
application would be denied due to the lack of an approved visa petition for the new employer.
On June 19, 2001, USCIS1 issued a policy memorandum outlining procedures for
1 Prior to March 1, 2003, the functions of USCIS were carried out by its predecessor agency, the Immigration and Naturalization Service. See 6 U.S.C. § 271(b); 8 U.S.C. § 1103. For simplicity, the Court shall not make any distinction between the agencies and refer to them at all times as USCIS.
3 processing visa petitions based on the changes imposed by AC21. See Compl. ¶ 36 & Ex. B
(6/19/2001 Memorandum from Michael A. Pearson, Exec. Assoc. Comm’r, to Service Center
Directors and Regional Directors). The policy memorandum explained that adjudicators should
not deny applications for adjustment of status on the basis that the alien has changed jobs. See
id. § F(1). The memorandum stated that when the applicant no longer intends to be employed by
the employer who sponsored the visa petition, USCIS should request a letter of employment from
the new employer to determine whether the new job is in the same or similar occupation. Id.
Effective July 31, 2002, federal regulations were amended to permit a I-485 application to
be filed concurrently with an I-140 Petition when a visa is available. See 8 C.F.R.
§ 245.2(a)(2)(i). The purpose of this rule change was to eliminate the delay that occurred
between the approval of the I-140 Petition and the filing of the I-485 application. See Allowing
in Certain Circumstances for the Filing of Form I-140 Visa Petition Concurrently with a Form I-
485 Application, 67 Fed. Reg. 49561-01 (July 31, 2002).
On August 4, 2003, USCIS issued a memorandum addressing the requirements of the
AC21 Portability Provision in light of the change in regulations allowing concurrent filing of I-
140 petitions and I-485 applications. See Compl. ¶ 37 & Ex. C (8/4/2003 Memorandum from
William R. Yates, Acting Assoc. Dir. for Operations, USCIS, to USCIS Service Center Directors
and Regional Directors). The memorandum explained that the guidance from the June 2001
policy memorandum was still in effect, explaining that “[i]f the Form I-140 (‘immigration
petition’) has been approved and the Form I-485 (‘adjustment application’) has been filed and
remained unadjudicated for 180 days or more (as measured from the Form I-485 receipt date),
the approved Form I-140 will remain valid even if the alien changes jobs or employers as long as
4 the new offer of employment is in the same or similar occupation.” Id. § A. The memorandum
further explained that in cases where the employer withdraws the I-140 petition after it has been
approved and after the I-485 application has been pending for 180 days, the I-140 petition shall
remain valid pursuant to the AC21 Portability Provision. See id. § B. In such cases, the alien
must then provide USCIS evidence of a qualifying offer of employment from a new employer, or
else the I-485 application will be denied. Id. The memorandum also explained that in cases
where approval of a Form I-140 is revoked or the employer withdraws the Form I-140 before the
alien’s Form I-485 has been pending for 180 days, the approved Form I-140 is no longer valid
with respect to the alien’s application. Id.
On May 12, 2005, USCIS issued another guidance memorandum addressing the
processing of I-140 petitions and I-485 applications. See Compl. ¶ 39 & Ex. D (5/12/2005
Memorandum from William R. Yates, Assoc. Dir. for Operations, USCIS to Regional Directors
and Service Center Directors). This guidance memorandum presented a series of questions and
answers involving issues that may be faced by adjudicators, including the following:
Question 1. How should service centers or district offices process unapproved I- 140 petitions that were concurrently filed with I-485 applications that have been pending 180 days in relation to the I-140 portability provisions under § 106(c) of AC21?
Answer: If it is discovered that a beneficiary has ported off of an unapproved I-140 and I-485 that has been pending for 180 days or more, the following procedures should be applied:
A. Review the pending I-140 petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within 180 days. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on its
5 merits. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I-140 portability purposes.
B. If additional evidence is necessary to resolve a material post- filing issue such as ability to pay, an RFE [Request for Evidence] can be sent to try to resolve the issue. When a response is received, and if the petition is approvable, follow the procedures in part A above.
...
Question 11. When is an I-140 no longer valid for porting purposes?
Answer: An I-140 is no longer valid for porting purposes when:
A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I- 485 has been pending for 180 days.
Id. at 3-7. Plaintiffs call the review process described in the answer to Question 1 a “Yates
Review.” See Compl. ¶ 39. This memorandum was later revised and reissued on December 27,
2005. See id. ¶ 42 & Ex. F.
On October 12, 2005, USCIS adopted a decision from its Administrative Appeals Office
in the Matter of Al Wazzan as guidance on the administration of the AC21 Portability Provision.
See Compl. ¶ 41 & Ex. E (Matter of Al Wazzan). In that decision, the Administrative Appeals
Office ruled that the Portability Provision did not require USCIS to accept an unadjudicated I-
140 petition as “valid” if there was a basis for denying the petition on the merits. See id. The
decision explained that a petition cannot “remain valid” under the Portability Provision if it was
never valid in the first place. Id.
On May 30, 2008, USCIS issued a supplemental guidance memorandum relating to the
6 processing of I-140 petitions and I-485 applications. See Compl. ¶ 43 & Ex. G (5/30/2008
Memorandum from Donald Neufeld, Acting Assoc. Dir., Domestic Operations to Field
Leadership). This memorandum explained that in accordance with the ruling in the Matter of Al
Wazzan, an I-140 petition will not be considered “valid” for purposes of the Portability Provision
merely because it was filed with USCIS and the alien’s I-485 application has been pending for
180 days. See id. § II(5). “In order to be considered valid, an I-140 petition must have been filed
on behalf of an alien who was entitled to the employment-based classification at the time that the
petition was filed, and therefore must be approved prior to a favorable determination of a
portability request made under INA § 204(j) [8 U.S.C. § 1154(j)].” Id.
B. Plaintiffs’ Applications for Adjustment of Status
Plaintiffs Ajay Naidu Ravulapalli and Lakshmi Alekhya Ravulapalli are married citizens
of India and residents of Rockville, Maryland. Compl. ¶¶ 13-14. On January 16, 2007, Mr.
Ravulapalli’s employer, ERP Analysts, Inc. (“ERP”) filed a labor certification application on his
behalf, which was approved by the Department of Labor on January 22, 2007. Id. ¶¶ 47-48.
Based on the approved labor certification application, ERP filed an I-140 petition listing Mr.
Ravulapalli as the intended beneficiary on August 16, 2007. Id. ¶ 49. Mr. Ravulapalli
concurrently filed an I-485 application to adjust his status to lawful permanent resident based on
the I-140 petition. Id. ¶ 50. Mrs. Ravulapalli also filed an I-485 application as a derivative
beneficiary of her husband’s application. Id.
In November 2008, ERP informed Mr. Ravulapalli that it may need to withdraw the I-140
petition it filed on his behalf. Compl. ¶ 52. Mr. Ravulapalli then decided to work for
BearingPoint, Inc., which was later acquired by Deloitte Consulting LLP (“Deloitte”). Id. ¶¶ 52-
7 53, 62. Mr. Ravulapalli presently works for Deloitte in a job that is in the same or similar
occupational classification as the job for which the I-140 petition was filed. Id. ¶ 62. At the time
Mr. Ravulapalli left the employ of ERP, USCIS had not yet adjudicated ERP’s I-140 petition or
the Ravulapallis’ I-485 applications. Id. ¶¶ 51, 54. On March 24, 2009, USCIS denied
Plaintiffs’ I-485 applications based on ERP’s withdrawal of the I-140 petition. Id. ¶ 54 & Ex. M
(3/24/2009 Notice of Decision). The decision letter stated that the underlying visa petition upon
which Mr. Ravulapalli’s application was based had been withdrawn as of March 24, 2009 and
therefore he was ineligible to adjust status. Id. Mrs. Ravulapalli’s application was denied based
on the denial of her husband’s application. Id. The record indicates that ERP sent a letter to
USCIS requesting withdrawal of the I-140 petition on November 17, 2008. See Compl. Ex. N;
Defs.’ Mot. to Dismiss, Ex. 1.
On April 13, 2009, Plaintiffs filed a motion to reopen and/or reconsider USCIS’s denial
of their I-485 applications, arguing that their applications should remain valid under the
Portability Provision in AC21. Compl. ¶ 58. On June 2, 2009, USCIS denied Plaintiffs’ motion
to reconsider on the grounds that the I-140 petition on which their applications were based had
been withdrawn. Id. ¶ 59 & Ex. N.
C. Plaintiffs’ Claims in Federal Court
Plaintiffs filed this action on March 17, 2010. In their Complaint, Plaintiffs assert five
causes of action relating to Defendants’ denial of their I-485 applications to adjust status. In
Count One, Plaintiffs claim that Defendants had a mandatory duty under the Portability Provision
in AC21, 8 U.S.C. § 1154(j), to treat the I-140 petition submitted by ERP as valid with respect to
Mr. Ravulapalli’s new job because his I-485 application remained unadjudicated for 180 days at
8 the time ERP sought to withdraw the petition. See Compl. ¶¶ 69-72. In Count Two, Plaintiffs
claim that Defendants acted arbitrarily and capriciously by departing from internal policies
requiring them to consider the merits of the I-140 petition before denying their I-485
applications. See id. ¶¶ 74-78. In Count Three, Plaintiffs claim that Defendants’ refusal to
follow their own policy guidance amounts to a legislative rule change that requires USCIS to
follow notice-and-comment rulemaking procedures under 5 U.S.C. § 553. See Compl. ¶¶ 81-90.
Plaintiffs assert these claims under the judicial review provisions of the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 701-06. Pursuant to the APA, “[a] person suffering legal
wrong because of agency action, or adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. A
reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions
found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” Id. § 706(2).
In Count Four of their Complaint, Plaintiffs seek mandamus under 28 U.S.C. § 1361 to
compel Defendants to adjudicate their I-485 applications. See Compl. ¶¶ 92-97. In Count Five,
Plaintiffs claim that Defendants’ distinction between I-485 applicants whose I-140 petitions are
approved and later revoked and I-485 applicants whose I-140 petitions are approvable and later
withdrawn lacks a rational basis and violates the equal protection guarantee implicit in the due
process clause of the Fifth Amendment to the U.S. Constitution. See id. ¶¶ 99-103. Plaintiffs
seek declaratory relief relating to the alleged violations and an order compelling Defendants to
re-open Plaintiffs’ I-485 applications and determine whether they are eligible to adjust status
based on whether the I-140 petition was approvable when filed. Id., Prayer for Relief.
9 II. LEGAL STANDARD
Defendants move to dismiss Plaintiffs’ Complaint in part for lack of subject matter
jurisdiction based on a lack of standing and in part for failure to state claim upon which relief can
be granted.
A court must dismiss a case pursuant to Rule 12(b)(1) when it lacks subject matter
jurisdiction. In determining whether there is jurisdiction, the Court may “consider the complaint
supplemented by undisputed facts evidenced in the record, or the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts.” Coalition for Underground
Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted); see also Jerome
Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (“[T]he
district court may consider materials outside the pleadings in deciding whether to grant a motion
to dismiss for lack of jurisdiction.”). “At the motion to dismiss stage, counseled complaints, as
well as pro se complaints, are to be construed with sufficient liberality to afford all possible
inferences favorable to the pleader on allegations of fact.” Settles v. U.S. Parole Comm’n, 429
F.3d 1098, 1106 (D.C. Cir. 2005). In spite of the favorable inferences that a plaintiff receives on
a motion to dismiss, it remains the plaintiff’s burden to prove subject matter jurisdiction by a
preponderance of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency, 121 F. Supp. 2d 84, 90
(D.D.C. 2000). “Although a court must accept as true all factual allegations contained in the
complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff[’s] factual
allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in
resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd.,
10 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks omitted).
Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. (8)(a), “in
order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). Although “detailed factual allegations” are not necessary to withstand a
Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must furnish “more than
labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. “Nor
does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at
557). Rather, a complaint must contain sufficient factual allegations that if accepted as true,
“state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct.
1949 (citing Twombly, 550 U.S. at 556).
When considering a motion to dismiss for failure to state a claim, the court must construe
the complaint in a light most favorable to the plaintiff and must accept as true all reasonable
factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of
Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also Schuler v.
United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (“The complaint must be liberally construed in
favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from
11 the facts alleged”) (internal quotation omitted). However, a plaintiff must provide more than just
“a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1950. When a
complaint’s well-pleaded facts do not enable a court, “draw[ing] on its judicial experience and
common sense,” “to infer more than the mere possibility of misconduct,” the complaint has not
shown that the pleader is entitled to relief. Id.
III. DISCUSSION
Although Plaintiffs assert five causes of action against Defendants in this action, there are
only two core legal questions raised by Plaintiffs’ Complaint. First, did USCIS violate the
Portability Provision in 8 U.S.C. § 1154(j) by determining that ERP’s withdrawal of its I-140
petition after Plaintiffs’ I-485 applications had been pending for 180 days made Plaintiffs
ineligible to their adjust status? Second, did USCIS violate the Administrative Procedure Act by
departing from its own written policy guidelines requiring the agency to determine whether an I-
140 petition was approvable when filed, and if so, to approve it? As explained below, the Court
finds that the answer to the first question is “no” and the answer to the second question is
“maybe.”
Before reviewing the merits of Plaintiffs’ claims, however, the Court must address
several threshold arguments raised by Defendants in their motion to dismiss. First, Defendants
argue that Mr. Ravulapalli lacks standing as a beneficiary of the I-140 petition to seek review of
USCIS’s actions in acknowledging the withdrawal of that petition. See, e.g., George v.
Napolitano, 693 F. Supp. 2d 125, 130 (D.D.C. 2010) (“In an action seeking review of denial of
an I-140 Petition, the prospective employer, and not the alien, is the proper party.”). However,
Defendants’ standing argument misconstrues the nature of the claims Plaintiffs are asserting.
12 Plaintiffs are not challenging the withdrawal of the I-140 petition or USCIS’s acknowledgment
of that withdrawal. Instead, they are arguing that the withdrawal of the petition was legally
irrelevant because it occurred after their I-485 applications had been pending for 180 days, and
therefore Defendants were required—either by law or their own preexisting policies—to
determine whether the I-140 petition was approvable, and if so, to approve it. Therefore,
Plaintiffs are challenging a legal determination made by Defendants that they were ineligible to
adjust their status because of the withdrawal of the I-140 petition. Defendants do not dispute that
Plaintiffs have standing to challenge the denial of their I-485 applications. Accordingly, the
Court finds that Plaintiffs have standing to assert the claims in their Complaint, all of which
challenge the legal basis for Defendants’ denial of their I-485 applications.
Second, Defendants argue that ERP’s withdrawal of the I-140 petition and USCIS’s
acknowledgment thereof is not a “final agency action” that is reviewable under the APA. See 5
U.S.C. § 704 (“Agency action made reviewable by statute and final agency action for which there
is no other adequate remedy in a court are subject to judicial review.”). However, Defendants’
argument again misinterprets Plaintiffs’ claims. The challenged agency action in this case is the
denial of Plaintiffs’ I-485 applications based on the determination that Mr. Ravulapalli was
ineligible to adjust status because the I-140 petition submitted on his behalf was withdrawn after
his I-485 application had been pending for 180 days. There can be no doubt that the agency took
a “final” action with respect to Plaintiffs’ I-485 applications—it denied them.
Finally, although the parties did not raise this issue in their briefs, the Court notes that it
has jurisdiction to entertain Plaintiffs’ claims because Defendants’ denial of Plaintiffs’ I-485
applications was based on a pure question of law and not the exercise of discretion. See Mawalla
13 v. Chertoff, 468 F. Supp. 2d 177, 178 (D.D.C. 2007). Although 8 U.S.C. § 1252(a)(2)(B)2
appears to strip the federal courts of jurisdiction to review denials of applications to adjust status
under 8 U.S.C. § 1255, most federal courts have held that this provision bars only review of
discretionary decisions. See, e.g., Pinho v. Gonzales, 432 F.3d 193, 203-04 (3d Cir. 2005);
Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005) (“[W]e hold that 8 U.S.C.
§ 1252(a)(2)(B) does not strip courts of jurisdiction to review nondiscretionary decisions
regarding an alien’s eligibility for the relief specified in 8 U.S.C. § 1252(a)(2)(B)(i).”); Succar v.
Ashcroft, 394 F.3d 8, 19 (1st Cir. 2005) (“Both the Supreme Court and this court have
consistently rejected arguments that Congress has eliminated judicial review of the legal question
of the interpretation of the statute as to whether an alien is eligible for consideration of relief.”);
Iddir v. INS, 301 F.3d 492, 497-98 (7th Cir. 2002); Montero-Martinez v. Ashcroft, 277 F.3d
1137, 1141-43 (9th Cir. 2002); Mawalla, 468 F. Supp. 2d at 180-81. But see Djodeir v.
Mayorkas, 657 F. Supp. 2d 22 (D.D.C. 2009) (Leon, J.) (holding that 8 U.S.C. § 1522(a)(2)(B)(i)
precludes all judicial review of denials of relief under 8 U.S.C. § 1255). This Court is persuaded
by the weight of the authority that it has jurisdiction to hear Plaintiffs’ claims. Accordingly, it
shall consider whether Plaintiffs have stated a claim upon which relief can be granted.
2 This provision reads as follows:
Notwithstanding any other provision of law (statutory or nonstatutory), . . . and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review–(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.
14 A. The AC21 Portability Provision Does Not Require USCIS to Determine Whether an Unadjudicated, Withdrawn I-140 Petition Is Approvable
Counts One and Four of Plaintiffs’ Complaint are both premised on Plaintiffs’ belief that
the Portability Provision of AC21, 8 U.S.C. § 1154(j), requires USCIS to treat an I-140 petition
as “valid” when it is withdrawn after an I-485 application has been pending for 180 days but
before it has been approved. Defendants argue that the Portability Provision does not require this
result because, in their view, an I-140 petition is not “valid” until it has been approved. Because
this is fundamentally a question of statutory interpretation, the Court’s analysis begins with the
text of the statute itself.
Section 1154(j) of title 8, which is captioned, “Job flexibility for long delayed applicants
for adjustment of status to permanent residence,” provides as follows:
A petition under subsection (a)(1)(D) [since redesignated subsection (a)(1)(F)] of this section for an individual whose application for adjustment of status pursuant to section 1255 of this title has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.
The critical phrase in this provision is “shall remain valid,” which the statute does not define. As
the Court explained in the background section, at the time Congress enacted the Portability
Provision, it could only have applied to approved I-140 petitions because USCIS did not permit
aliens to file I-485 applications until their I-140 petitions had been approved. Therefore, there is
no doubt that when Congress enacted the statute, “shall remain valid” referred to the agency’s
approval of the I-140 petition.
Now that USCIS regulations permit concurrent filing of I-140 petitions and I-485
applications, Plaintiffs argue that “shall remain valid” must also extend to I-140 petitions that
15 were approvable when filed but were not adjudicated within the first 180 days. In other words,
Plaintiffs argue that “valid” means “approvable when filed” rather than “approved.” This is one
possible construction of the statute, and it would certainly effectuate the purpose of increasing
job flexibility for long-delayed applicants for adjustment of status to permanent residence.
However, Plaintiffs’ construction also goes far beyond what Congress originally intended based
on the regulations in place at the time. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-
85 (1988) (“We generally presume that Congress is knowledgeable about existing law pertinent
to the legislation it enacts.”). Immediately after the Portability Provision was enacted, an alien
seeking to change jobs had to wait until his I-140 petition was approved, file an I-485
application, and then wait 180 days, meaning that if the agency took a year to approve the I-140
petition, the alien would have to wait at least a year and 180 days. Now, if the I-140 petition and
the I-485 application are filed concurrently, Plaintiffs’ construction of the Portability Provision
would cut the alien’s waiting time down to just 180 days. It is doubtful that Congress would
have intended such a significant change to result from the agency’s decision to change its
regulations to permit concurrent filing.
Defendants argue that because an alien must have an approved I-140 petition before he is
eligible to apply for an adjustment of status to permanent residence, the Portability Provision
should not be construed to preserve the “validity” of unadjudicated petitions. This is the most
natural construction of the statute, and it preserves the meaning Congress originally prescribed.
It is also the construction that has been adopted by another judge in this district. See George v.
Napolitano, 693 F. Supp. 2d at 130-31. “In the usual circumstance, of course, a judge’s view of
the ‘better’ reading of a statute administered by an agency is not necessarily dispositive,” since an
16 agency’s interpretation of a statute it is entrusted to administer is generally accorded some
deference. Sottera, Inc. v. Food & Drug Admin., 627 F.3d 891, 903 (D.C. Cir. 2010) (Garland,
J., concurring in judgment). Defendants argue that deference to their reasonable interpretation of
the statute is required under Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S.
837 (1984). See Defs.’ Mem. at 10. However, Chevron deference is only appropriate for
statutory interpretations that Congress intended to carry the “force of law,” and positions taken in
an agency’s litigation briefs do not warrant such deference. United States v. Mead Corp., 533
U.S. 218, 229 (2001); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988). The Court
respects Defendants’ construction of the statute only to the extent it has the “power to persuade.”
Mead, 533 U.S. at 235 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). In any
event, the Court agrees that Defendants have the better construction of the statute.
Because the Court finds that the Portability Provision preserves the validity of only those
I-140 petitions that have been approved, Defendants’ denial of Plaintiffs’ I-485 applications
based on the lack of an approved I-140 petition did not violate the statute. Accordingly, the
Court shall grant Defendants’ motion to dismiss Count One of the Complaint. The Court shall
also grant Defendants’ motion with respect to Plaintiffs’ mandamus claim to the extent it relies
on Defendants’ alleged violation of the statute.
B. Plaintiffs Have Stated a Claim that Defendants Acted Arbitrarily or Capriciously By Misapplying Their Established Policies
Even where an agency has adopted a reasonable construction of the governing statute, the
Court “still must ensure that [the agency’s] action is not otherwise arbitrary and capricious.”
Int’l Union, United Mine Workers of Am. v. Mine Safety & Health Admin., 626 F.3d 84, 90 (D.C.
17 Cir. 2010). In Count Two of their Complaint, Plaintiffs claim that Defendants acted arbitrarily
and capriciously by failing to follow their own interpretive guidelines with respect to the
adjudication of I-140 petitions and I-485 applications. An administrative agency may be said to
have acted arbitrarily or capriciously when it disregards its established policy without adequate
explanation. See INS v. Yang, 519 U.S. 26, 32 (1996) (“Though an agency’s discretion is
unfettered at the outset, if it announces and follows—by rule or by settled course of
adjudication—a general policy by which its exercise of discretion will be governed, an irrational
departure from that policy (as opposed to an avowed alteration of it) could constitute action that
must be overturned as ‘arbitrary, capricious, [or] an abuse of discretion’”); Commc’ns Satellite
Corp. v. FCC, 836 F.2d 623, 629 (D.C. Cir. 1988) (“If, as [plaintiff] asserts, the [agency] has
departed from established policy, then we must determine whether the agency has acted pursuant
to ‘reasoned analysis indicating that prior policies and standards are being deliberately changed,
not casually ignored.’”) (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852
(D.C. Cir. 1970)); see also Morton v. Ruiz, 415 U.S. 199, 235 (1974) (“Where the rights of
individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so
even where the internal procedures are possibly more rigorous than otherwise would be
required.”).
Here, Plaintiffs have alleged that USCIS issued binding policy guidelines that required
the agency to determine the validity of an unapproved I-140 petition that is withdrawn after an I-
485 application has been pending for 180 days. Specifically, Plaintiffs point to the guidance
issued in 2005 requiring a so-called “Yates Review” of unapproved I-140 petitions that have
been pending for 180 days. That guidance memorandum went on to state that an I-140 petition is
18 “no longer valid for porting purposes when: (A) an I-140 is withdrawn before the alien’s I-485
has been pending 180 days, or (B) an I-140 is denied or revoked at any time except when it is
revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.”
This language strongly implies that if an I-140 petition is withdrawn after the alien’s I-485
application has been pending for 180 days, it should be given a “Yates Review” and evaluated to
determine if it is approvable. After all, the policy guidance requiring a “Yates Review”
effectively eliminates the distinction between petitions that have been “approved” and petitions
that are “approvable” once they have been pending for 180 days. It is unclear why Defendants
would reimpose that distinction in cases where the petition is withdrawn before it can be granted.
Defendants do not address this issue in their briefs, and there is nothing in the record before the
Court that explains the agency’s rationale. At the motion to dismiss stage, the Court must draw
all reasonable inferences in favor of Plaintiffs and assume that USCIS’s policy guidance required
it to review Mr. Ravulapalli’s I-140 petition to determine whether it was approvable, and if so, to
approve it. Without the full administrative record and further briefing from Defendants, the
Court cannot determine whether Defendants’ actions were arbitrary and capricious. However,
the Court finds that Plaintiffs have stated a claim for an APA violation, and therefore the Court
shall deny Defendants’ motion to dismiss with respect to Count Two of the Complaint.
In Count Three of their Complaint, Plaintiffs argue that Defendants’ departure from
previously established interpretive guidance amounts to a rule change that requires the agency to
provide interested parties with notice and an opportunity to comment in accordance with the
APA. See 5 U.S.C. § 553. Defendants argue that the agency’s policies are “interpretive rules”
that are not subject to notice-and-comment requirements. See id. § 553(b) (exempting from
19 notice-and-comment procedures “interpretive rules, general statements of policy, or rules of
agency organization, procedure, or practice”). However, there is some support for Plaintiffs’
position that a change in interpretive rules must be accompanied by notice and comment. See
Transp. Workers Union of Am., AFL-CIO v. Transp. Security Admin., 492 F.3d 471, 475 (D.C.
Cir. 2007) (discussing “a line of cases holding that an agency cannot significantly change its
position, cannot flip-flop, even between two interpretive rules, without prior notice and
comment”). The parties have not addressed this issue in their briefs, and in light of the
uncertainty regarding the nature of the rules relied on by USCIS in denying Plaintiffs’ I-485
applications, the Court shall deny Defendants’ motion to dismiss Count Three and reconsider this
issue in the summary judgment context.
C. Plaintiffs Cannot Prevail on Their Equal Protection Claim
In Count Five of their Complaint, Plaintiffs claim that Defendants’ disparate treatment of
aliens whose I-140 petitions are approved within 180 days and those whose I-140 petitions are
not approved within 180 days violates the equal protection guarantee implied in the Due Process
Clause of the Fifth Amendment. “In areas of social and economic policy, a statutory
classification that neither proceeds along suspect lines nor infringes fundamental constitutional
rights must be upheld against equal protection challenge if there is any reasonably conceivable
state of facts that could provide a rational basis for the classification.” FCC v. Beach Commc’ns,
Inc., 508 U.S. 307, 313 (1993). Whether or not Defendants adhered to their own policies in
denying Plaintiffs’ I-485 applications, the Court cannot conclude that there is no rational basis
for distinguishing between these two categories of applicants. As explained above, the
Portability Provision does not require USCIS to determine whether unapproved, withdrawn I-140
20 petitions are valid, and the agency could have reasonably determined that adjudication of those
petitions would waste agency resources and not effectuate the purpose of the statute. Therefore,
the Court shall grant Defendants’ motion to dismiss Plaintiffs’ equal protection claim.
D. Defendants’ Alternative Motion to Transfer
Defendants argue that the Court should transfer this action to the United States District
Court for the Northern District of Texas pursuant to 28 U.S.C. § 1404(a). Section 1404(a)
permits the Court to transfer a case to any other district where it might have been brought “[f]or
the convenience of the parties and witnesses, in the interest of justice.” The Court is afforded
broad discretion to decide whether transfer from one jurisdiction to another is proper under
§ 1404(a). SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154 (D.C. Cir. 1978) (quoting Norwood v.
Kirkpatrick, 349 U.S. 29, 32 (1955)). The decision to transfer is made by an “individualized,
case-by-case consideration of convenience and fairness . . . .” Van Dusen v. Barrack, 376 U.S.
612, 622 (1964). “The moving party ‘bear[s] a heavy burden of establishing that plaintiff[’s]
choice of forum is inappropriate.’” S. Utah Wilderness Alliance v. Norton, 315 F. Supp. 2d 82,
86 (D.D.C. 2004) (quoting Pain v. United Tech. Corp., 637 F.2d 775, 784 (D.C. Cir. 1980)).
Defendants argue that a change of venue is appropriate because the Northern District of
Texas has a more substantial connection to the events at issue in this litigation and is a more
convenient forum. It is clear that this action could have been brought in the Northern District of
Texas because Defendant David L. Roark, Director of the USCIS Texas Service Center, resides
there and personnel at the Texas Service Center denied Plaintiffs’ I-485 applications. See 28
U.S.C. § 1391(e) (“A civil action in which a defendant is an officer or employee of the United
States or any agency thereof acting in his official capacity . . . may, except as otherwise provided
21 by law, be brought in any judicial district in which (1) a defendant in the action resides[ or] (2) a
substantial part of the events or omissions giving rise to the claim occurred . . . .”). Accordingly,
the only issue now before the Court is whether the relevant private and public interest factors
counsel in favor of transfer. See Greater Yellowstone Coalition v. Bosworth, 180 F. Supp. 2d
124, 127-28 (D.D.C. 2001) (discussing the factors courts should consider in weighing a transfer
under § 1404(a)).
The Court begins by considering the private interests at stake in a transfer: (1) the
plaintiffs’ choice of forum, unless the balance of convenience is strongly in favor of the
defendants; (2) the defendants’ choice of forum; (3) whether the claim arose elsewhere; (4) the
convenience of the parties; (5) the convenience of the witnesses, but only to the extent they may
actually be unavailable for trial in one of the fora; and (6) the ease of access to sources of proof.
Greater Yellowstone Coalition, 180 F. Supp. 2d at 127. Courts generally give considerable
deference to the plaintiffs’ choice of forum. S. Utah Wilderness Alliance, 315 F. Supp. 2d at 86.
Defendant argues, however, that the Court should not give significant weight to Plaintiffs’ choice
of forum because they do not reside in this District. It is true that a plaintiff’s choice of forum is
“conferred less deference by the court when [it] is not the plaintiff’s home forum.” Shawnee
Tribe v. United States, 298 F. Supp. 2d 21, 24 (D.D.C. 2002) (citing Piper Aircraft Co. v. Reyno,
454 U.S. 235, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981)). Therefore, this factor does not weigh as
strongly against transfer and is partly balanced by Defendants’ preference for the Northern
District of Texas. The Court does note, however, that Plaintiffs reside just outside the District of
Columbia.
The parties dispute whether Plaintiffs’ claims arose primarily in the District of Columbia
22 or in the Northern District of Texas. According to the allegations in the Complaint and the
supporting documentation, it appears that officials at the USCIS Texas Service Center denied
Plaintiffs’ I-485 applications based on policy guidance issued from USCIS headquarters in the
District of Columbia. Because Plaintiffs are challenging the application of those policies, this
factor weighs against transfer. The remainder of the private interest factors are of limited value
in this case because Plaintiffs’ claims are primarily legal in nature and likely to be based solely
on the administrative record and resolved on summary judgment. Otay Mesa Property L.P. v.
U.S. Dep’t of Interior, 584 F. Supp. 2d 122, 125 (D.D.C. 2008).
The Court turns next to consideration of the public interest factors, including (1) the
transferee forum’s familiarity with the governing laws and the pendency of related actions in that
forum; (2) the relative congestion of the calendars of the potential transferee and transferor
courts; and (3) the local interest in deciding local controversies at home. Trout Unlimited v. U.S.
Dep’t of Agriculture, 944 F. Supp. 13, 16 (D.D.C. 1996). Because Plaintiffs’ claims involve only
federal law and there is no evidence of related actions pending in the Northern District of Texas,
the first factor does not weigh in favor of a transfer. According to recent judicial caseload
statistics, the calendar in the Northern District of Texas is slightly less congested than the
calendar in this district, so this factor weighs slightly in favor of transfer. The parties strongly
disagree about whether the Northern District of Texas has a local interest in the controversy.
Defendants argue that because the final denials were made by officials in the USCIS Texas
Service Center, the Northern District of Texas has a local interest in the case. Defendants rely
primarily on cases where the plaintiff is seeking to compel a local field office to adjudicate a
pending application after unreasonable delay. See, e.g., Al-Ahmed v. Chertoff, 564 F. Supp. 2d
23 16 (D.D.C. 2008); Abusedeh v. Chertoff, Civil Action No. 06-2014, 2007 WL 2111036 (D.D.C.
July 23, 2007). However, Plaintiffs’ claims focus primarily on the policies issued from USCIS
headquarters that apply to all USCIS field offices. Therefore, the Northern District of Texas has
no particular localized interest in this litigation. See Otay Mesa Property, 584 F. Supp. 2d at
126-27 (finding that there was no localized interest justifying transfer because plaintiffs
challenged a national policy that had no direct or unique impact on transferee forum).
Considering the private and public interest factors together, the Court finds that they do
not, taken as a whole, weigh in favor of transfer to the Northern District of Texas. Because
Defendants have failed to demonstrate that a transfer would be in the interest of justice for the
convenience of the parties and witnesses, the Court shall deny Defendants’ alternative motion to
transfer.
IV. CONCLUSION
For the foregoing reasons, the Court shall GRANT-IN-PART Defendants’ [8] Motion to
Dismiss with respect to Counts One, Four, and Five of the Complaint and DENY-IN-PART the
motion with respect to Counts Two and Three of the Complaint. The Court finds that the
Portability Provision did not require Defendants to review the I-140 petition filed by ERP once it
was withdrawn after Plaintiffs’ I-485 applications had been pending for 180 days. The Court
also finds that Plaintiffs have failed to assert a viable constitutional claim under the Fifth
Amendment’s Due Process Clause. However, the Court finds that Plaintiffs have stated a claim
for violation of the APA based on Defendants’ alleged departure from their own policy
guidelines and failure to follow notice-and-comment procedures. The Court also finds that a
transfer to the Northern District of Texas is not in the interest of justice, and therefore the Court
24 shall DENY Defendants’ Alternative Motion to Transfer. An appropriate Order accompanies
this Memorandum Opinion.
Date: March 29, 2011 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge