Victoria Zhuravel v. United States Citizenship and Immigration Services, et al.

• Court: District Court, C.D. California
• Decided: March 13, 2026
• Docket: 5:25-cv-02387
• Status: Unknown

Opinion

2 O 3

7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9

10 VICTORIA ZHURAVEL, Case No.: 5:25-cv-02387-MEMF

11 Plaintiff, ORDER GRANTING DEFENDANT’S 12 v. MOTION TO DISMISS [DKT. NO. 16]

13 UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., 14

15 Defendant. 16 17 18 19

20 Before the Court is the Motion to Dismiss filed by Defendants the United States Citizenship 21 and Immigration Services and the United States Department of Homeland Security. Dkt. No. 16.The 22 Court finds this matter appropriate for resolution without oral argument and hereby VACATES the 23 hearing set for March 5, 2026. See Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. For the reasons stated 24 herein, the Court hereby GRANTS the Motion to Dismiss without leave to amend. 25

27 / / / 28 1 I. Background 2 A. Factual Background1 3 Plaintiff Victoria Zhuravel is a real estate professional who resides in Orange County, 4 California and operates a corporate housing business. Dkt. No. 1 ¶ 7.2 On or about June 26, 2023, 5 Zhuravel filed a Form I-140 immigrant petition with the United States Citizenship and Immigration 6 Services (USCIS) seeking employment-based second preference (EB-2) immigrant classification as 7 either a member of the professions holding an advanced degree or an individual of exceptional 8 ability. Id. ¶ 10. As the petition was filed without a U.S. employer sponsor, Zhuravel self-petitioned 9 under the National Interest Waiver (NIW) category. Id. In or about Fall 2023, USCIS issued a 10 Request for Evidence seeking additional records to establish eligibility for the NIW, and Zhuravel 11 timely submitted such materials. Id. ¶ 11. On or about February 5, 2024, USCIS issued a decision 12 denying Zhuravel’s I-140 petition. Id. ¶ 12; Dkt. No. 1-2, Ex. A. USCIS found that Zhuravel 13 qualified as a professional holding an advanced degree but did not demonstrate exceptional ability 14 nor eligibility for a NIW. Dkt. No. 1-2, Ex. A at 5, 7, 9. 15 On March 6, 2024, Zhuravel timely appealed the denial to the USCIS Administrative 16 Appeals Office (AAO). Compl. ¶ 13. On July 14, 2024, the AAO issued a decision dismissing 17 Zhuravel’s appeal. Id. ¶ 15; Dkt. No. 1-3, Ex. B. Reviewing her case de novo, the AAO found that 18 Zhuravel did not qualify as a professional holding an advanced degree and agreed with the prior 19 ultimate findings regarding Zhuravel’s exceptional ability and eligibility for a NIW. Dkt. No. 1-3, 20 Ex. B at 3-4, 8. 21 In or about August 2024, Zhuravel timely filed motions to reopen and reconsider to the 22 AAO. Compl. ¶ 18. On February 14, 2025, the AAO issued a decision dismissing both motions. Id. ¶ 23 20; Dkt. No. 1-4, Ex. C. The AAO found that Zhuravel did not establish that she was eligible for a 24 25 1 Unless otherwise indicated, the Court’s factual background is derived from Zhuravel’s Complaint. See Dkt. No. 1 26 (“Compl.”). For the purposes of this Motion, the Court treats these factual allegations as true. However, at this stage of the litigation, the Court makes no finding on the truth of these allegations, and is therefore not finding that they are 27 indeed true.

28 2 All citations to the page numbers of docket filings are citations to the pagination imposed on the original documents. 1 NIW and, as this factor was dispositive, declined to reach conclusions about Zhuravel’s 2 qualifications as an advanced degree professional or individual of exceptional ability. Dkt. No. 1-4, 3 Ex. C at 2-3. 4 B. Procedural History 5 On September 11, 2025, Zhuravel filed a complaint in this Court against Defendants USCIS 6 and the U.S. Department of Homeland Security. Compl. Zhuravel alleges that Defendants’ decisions 7 to deny her I-140 petition and to dismiss her motions to reopen and reconsider were arbitrary, 8 capricious, an abuse of discretion, and not in accordance with the law in violation of the 9 Administrative Procedure Act. 5 U.S.C. § 706(2)(A); Compl. ¶¶ 1, 29. 10 On January 28, 2026, Defendants filed their Motion to Dismiss for lack of subject matter 11 jurisdiction and failure to state a claim. Dkt. No. 16 (“Motion”). Zhuravel untimely filed an 12 opposition to the Motion on February 12, 2026. Dkt. No. 18 (“Opp’n”).3 Defendants timely filed 13 their reply on February 19, 2026. Dkt. No. 19 (“Reply”). 14 II. Applicable Law 15 A. Federal Rule of Civil Procedure 12(b)(1) 16 “Federal courts are courts of limited jurisdiction,” and can only hear cases where there is a 17 valid basis for federal jurisdiction. Richardson v. United States, 943 F.2d 1107, 1112 (9th Cir. 1991). 18 Federal Rule of Civil Procedure 12(b)(1) authorizes a party to seek dismissal of an action for lack of 19 subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). In the context of a Rule 12(b)(1) motion, the 20 plaintiff bears the burden of establishing subject matter jurisdiction. Chandler v. State Farm Mut. 21 Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). Rule 12(b)(1) jurisdictional challenges can be 22 either facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a 23 facial challenge, the moving party “asserts that the allegations contained in [the] complaint are 24 insufficient on their face to invoke federal jurisdiction.” Id. 25 26 3 In accordance with this Court’s Civil Standing Order, the deadline to file an opposition to the Motion was February 11, 27 2026. Civil Standing Order § VIII(B). Defendants do not make note of Zhuravel’s untimeliness in their Reply. See Dkt. No. 19. Although Zhuravel failed to comply with the Court’s Civil Standing Order, the Court will address the merits of 28 the parties’ claims but admonishes the parties that future noncompliance with procedural requirements may result in a 1 B. Federal Rule of Civil Procedure 12(b)(6) Federal Rule of Civil Procedure 12(b)(6) allows an attack on the pleadings for “failure to 2 state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to 3 dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 5 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff 6 pleads factual content that allows the court to draw the reasonable inference that the defendant is 7 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 8 The determination of whether a complaint satisfies the plausibility standard is a “context- 9 specific task that requires the reviewing court to draw on its judicial experience and common sense.” 10 Id. at 679. Generally, a court must accept the factual allegations in the pleadings as true and view 11 them in the light most favorable to the plaintiff. Park v. Thompson, 851 F.3d 910, 918 (9th Cir. 12 2017). But a court is “not bound to accept as true a legal conclusion couched as a factual allegation.” 13 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). 14 C. Federal Rule of Civil Procedure 15(a) 15 As a general rule, leave to amend a dismissed complaint should be freely granted unless it is 16 clear the complaint could not be saved by any amendment. Fed. R. Civ. P. 15(a); Manzarek v. St. 17 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). A district court may deny leave 18 to amend due to futility of amendment. Id. at 1034. 19 20 D. The Administrative Procedure Act With limited exceptions, judicial review under the Administrative Procedure Act (APA) is 21 available for “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 22 704. The APA allows a court to “set aside agency action, findings, and conclusions found to be… 23 arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” Id. § 24 706(2)(A). “[T]he touchstone of ‘arbitrary and capricious’ review under the APA is ‘reasoned 25 decisionmaking.’” Altera Corp. & Subsidiaries v. Comm'r of Internal Revenue, 926 F.3d 1061, 1080 26 (9th Cir. 2019) (quoting Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. State Farm Mutual 27 Automobile Ins. Co., 463 U.S. 29, 52 (1983)). “[T]he agency must examine the relevant data and 28 1 articulate a satisfactory explanation for its action including a ‘rational connection between the facts 2 found and the choice made.’” State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines v. United 3 States, 371 U.S. 156, 168 (1962)). An agency need only address significant comments—that is, 4 comments which raise relevant points and, if incorporated, would require a change in the agency’s 5 outcome. Altera, 926 F.3d at 1081. 6 E. The Immigration and Nationality Act 7 Under the Immigration and Nationality Act (INA), “the Attorney General may, when the 8 Attorney General deems it to be in the national interest,” grant a NIW waiving the job offer and 9 labor certification requirements for noncitizens seeking an EB-2 visa. 8 U.S.C. § 1153(b)(2)(B)(i). 10 No statute defines the conditions under which USCIS should grant a NIW, but the AAO’s 11 precedential cases have established a framework for evaluating these petitions. Poursina v. United 12 States Citizenship & Immigr. Servs., 936 F.3d 868, 870 (9th Cir. 2019); In re Dhanasar, 26 I. & N. 13 Dec. 884, 886 (2016). Under the Dhanasar framework, USCIS may grant a NIW if the petitioner 14 shows by a preponderance of the evidence that (1) the petitioner’s proposed endeavor has both 15 substantial merit and national importance, (2) the petitioner is well positioned to advance the 16 proposed endeavor, and (3) on balance, it would be beneficial to the United States to waive the job 17 offer and labor certification requirements. 26 I. & N. Dec. at 889. 18 The INA also contains a jurisdiction-stripping provision: “no court shall have jurisdiction to 19 review… any other decision or action of the Attorney General or the Secretary of Homeland 20 Security the authority for which is specified under this subchapter to be in the discretion of the 21 Attorney General or the Secretary of Homeland Security[.]” 8 U.S.C. § 1252(a)(2)(B)(ii). “[T]he 22 authority to grant (or to deny) a national-interest waiver is in the discretion of the Attorney General” 23 and thus “§ 1252(a)(2)(B)(ii) bars review of decisions under § 1153(b)(2)(B)(i).” Poursina, 936 F.3d 24 at 872. However, § 1252(a)(2)(B)(ii) still allows courts “to review certain legal conclusions made on 25 ‘nondiscretionary grounds.’” Id. at 875 (quoting Mamigonian v. Biggs, 710 F.3d 936, 945 (9th Cir. 26 2013)). 27 / / / 28 / / / 1 III. Discussion 2 For the reasons discussed below, the Court finds that it lacks subject matter jurisdiction over 3 Zhuravel’s claims and dismissal without leave to amend is proper. Accordingly, the Court GRANTS 4 the Motion. 5 A. The Court lacks subject matter jurisdiction over Zhuravel’s claims. 6 The parties agree that this Court is not permitted to reweigh the merits of Zhuravel’s I-140 7 petition under § 1252(a)(2)(B)(ii). Opp’n at 9, 11; Reply at 2; see Poursina, 936 F.3d at 872. Thus, 8 the question presented by this motion is whether Zhuravel’s allegations properly constitute claims of 9 procedural error or improperly seek a reassessment of the merits of the denial decision. Defendants 10 contend that Zhuravel improperly seeks a review of a discretionary decision by the executive branch 11 over which this Court lacks jurisdiction. Motion at 5-6. Zhuravel argues that Defendants departed 12 from the legal framework when assessing her I-140 petition and NIW eligibility, and the Court is not 13 stripped of jurisdiction to address this. Opp’n at 12-13. The Court must therefore evaluate whether 14 Zhuravel, as the party with the burden of establishing subject matter jurisdiction, sufficiently alleges 15 that USCIS denied her petition on nondiscretionary grounds. Chandler, 598 F.3d at 1122; see 16 Poursina, 936 F.3d at 875. 17 Despite Zhuravel’s insistence that she seeks review of legal and procedural defects in 18 Defendants’ process, the Court finds that, in truth, Zhuravel is challenging the substance of a 19 decision that is within the Defendants’ discretion. First, Zhuravel alleges that Defendants failed to 20 correctly apply the legal framework outlined in Dhanasar in evaluating Zhuravel’s NIW eligibility. 21 Compl. ¶ 31. However, in all three of Defendants’ decisions—the denial of Zhuravel’s petition, the 22 dismissal of Zhuravel’s appeal, and the dismissal of Zhuravel’s motions to reopen and reconsider— 23 Defendants repeatedly referenced the framework of Dhanasar and either explained the reasons why 24 Zhuravel’s evidence fell short of satisfying its factors, or explained why it was unnecessary to 25 address a specific factor. Dkt. No. 1-2, Ex. A at 7-9 (considering the evidence submitted by Zhuravel 26 and finding she has not satisfied the criteria necessary to grant an I-140 petition); Dkt. No. 1-3, Ex. B 27 at 6-8 (concluding that the record contains “sufficient documentation” that Plaintiff’s proposed 28 endeavor has substantial merit but “does not demonstrate its national importance” under Dhanasar); 1 Dkt. No. 1-4, Ex. C at 1-3 (holding that Zhuravel “does not assert new facts and instead restates 2 information . . . [that USCIS] previously considered” and found insufficient to obtain a NIW). 3 Zhuravel’s argument that Defendants’ analysis was too narrow and contrary to the language of 4 Dhanasar is unavailing. She states that USCIS “[a]pplied an unduly restrictive conception of 5 ‘national importance’ that is inconsistent with the governing framework, including by collapsing 6 ‘national importance’ into a requirement of nationwide geographic scope or demanding a type of 7 impact the framework does not require.” Opp’n at 12. But this mischaracterizes the Defendants’ 8 actual decisions. They did not collapse national importance into a requirement of nationwide 9 geographic scope; rather, they noted that Dhanasar asks USCIS to “look for broader implications,” 10 26 I. & N. Dec. at 889 , and stated that Zhuravel “has not shown how her endeavor would result in 11 broader implications to the real estate industry, beyond the immediate benefit she may provide to her 12 clients.” Dkt. No 1-3, Ex. B at 7. Dhanasar only cautions against “overemphasis on the geographic 13 breadth of the endeavor” rather than prohibiting its consideration entirely, 26 I. & N. Dec. at 890 14 (emphasis added), and Defendants considered other reasons in concluding that Zhuravel failed to 15 establish national importance, such as the lack of “relevant and probative evidence” showing that she 16 would “foster homeownership in the United States.” Dkt. No. 1-3, Ex. B at 7. Similarly, Defendants’ 17 decisions did not demand a type of impact inconsistent with Dhanasar; rather, they considered just 18 what Dhanasar proposes—for instance, the endeavor’s “significant potential to employ U.S. workers 19 or result in substantial economic benefits.” Id.; see Dhanasar, 26 I. & N. Dec. at 890. And still, even 20 if Defendants’ reading of Dhanasar differs from that of Zhuravel, Zhuravel fails to establish that the 21 Defendants’ reading constitutes an abuse of the Defendants’ discretion. She therefore fails to 22 establish that the Defendants misapplied Dhanasar. 23 Second, Zhuravel alleges that Defendants failed to provide notice and opportunity for 24 Zhuravel to respond to their new adverse finding, at the appeal stage, that she was not an advanced 25 degree professional. Id. ¶ 32. Zhuravel also alleges that Defendants insufficiently addressed this 26 grievance in their dismissal of Zhuravel’s motions. Id. But Zhuravel points to no statute or 27 precedential case that precludes such an additional adverse finding upon Defendants’ permissible de 28 novo review of her case. In re Christos, Inc., 26 I. & N. Dec. 537, 537 n. 2 (2015). Furthermore, 1 Zhuravel was able to respond to this adverse finding in subsequent motions and Defendants’ 2 dismissal of these motions addressed and set aside this concern as other factors were dispositive of 3 Zhuravel’s case. Dkt. No. 1-4, Ex. C at 3 (citing INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 4 (“courts and agencies are not required to make findings on issues the decision of which is 5 unnecessary to the results they reach.”)).4 6 Third, Zhuravel alleges that Defendants failed to consider and meaningfully engage with 7 Zhuravel’s evidence and legal arguments at various stages of the proceedings, such as her expert 8 letters, business plan projections, and documentation of past achievements and experiences. Compl. 9 ¶¶ 33, 35. These allegations mirror the claims of the petitioner in Poursina, who alleged “that 10 [USCIS] failed to consider certain evidence . . . [and] misinterpreted the evidence it did consider.” 11 936 F.3d at 875. Just as the Ninth Circuit concluded in Poursina, this Court finds that “[t]he essence 12 of [this argument] is that USCIS should have exercised its discretion to issue a national-interest 13 waiver, and [Zhuravel’s] various claims simply repackage that core grievance.” 936 F.3d at 875. 14 Defendants’ ultimate determination that Zhuravel was ineligible for a NIW constitutes “a core 15 exercise of the discretion that the statute vests in the government.” Id. at 876. That Defendants found 16 Zhuravel’s evidence unconvincing or unavailing need not mean they ignored such materials—in 17 fact, consideration of them was necessary to reach such a conclusion, and they were, in fact, 18 considered. See, e.g., Dkt. Nos. 1-2, Ex. A at 8 (finding that Zhuravel’s resume, letters of support, 19 and expert opinion letter do not demonstrate that she is well positioned to advance her proposed 20 endeavor under Dhanasar’s second prong), 1-3, Ex. B at 8 (concluding that Zhuravel’s “business 21 plan does not provide sufficient explanation for the basis of [her revenue and job creation] 22 projections” under Dhanasar’s first prong), 1-4, Ex. C at 2 (stating that Zhuravel’s “new letter does 23 24

25 4 Zhuravel also asserts that “USCIS regulations provide that if an adverse decision will be based on a ground not previously addressed, the petitioner should be advised and afforded an opportunity to respond.” Compl. ¶ 13. Zhuravel 26 cites to 8 C.F.R. § 103.2(b)(16) to support this claim. However, this provision states that a petitioner should have an opportunity to respond “[i]f the decision will be adverse to the . . . petitioner and is based on derogatory information 27 considered by the Service and of which the . . . petitioner is unaware.” 8 C.F.R. § 103.2(b)(16)(i) (emphasis added). Zhuravel makes no allegation that Defendants’ dismissal of her appeal was based on derogatory information of which 28 she was not aware. Thus, Zhuravel’s claim that USCIS was required to provide notice of its new adverse finding at the 1 not address how [her] proposed endeavor offers original innovations to advance, or otherwise will 2 have broader implications in, the field of real estate” under Dhanasar’s first prong). 3 Finally, Zhuravel alleges that Defendants imposed novel substantive and evidentiary 4 requirements that are not found in statutes, regulations, or precedential cases. Compl. ¶ 34. For 5 example, Zhuravel argues that “Defendants effectively required [Zhuravel] to demonstrate that her 6 personal salary far exceeded industry averages to prove ‘exceptionality ability.’” Id. However, it is 7 unclear to the Court how exactly Defendants stepped outside their discretion in concluding that 8 Zhuravel’s evidence failed to establish her “exceptionality ability relative to others working in the 9 field,” Dkt. No. 1-3, Ex. B at 5, a standard that is attached to a policy. See 6 U.S. Citizenship & 10 Immigr. Servs., Policy Manual § F(5)(B)(2) (2026), https://www.uscis.gov/policy-manual/volume-6- 11 part-f-chapter-5 [https://perma.cc/A4TZ-789V]. The record demonstrates that Defendants considered 12 the original and supplemental financial documentation submitted by Zhuravel and concluded that the 13 evidence did not substantiate the “reported salaries”—thereby finding that Zhuravel did not establish 14 exceptional ability relative to others working in the field. Dkt. No. 1-3, Ex. B at 5. Thus, Zhuravel’s 15 allegations fail to show that Defendants reached their decisions to ultimately deny her petition on 16 nondiscretionary grounds. 17 In addition, Zhuravel cites to no binding authority in which a federal court found that it 18 possessed subject matter jurisdiction over claims that mirror the ones at issue here. She cites to 19 Kurapati v. U.S. Bureau of Citizenship & Immigr. Servs., Opp’n at 10, 13-14, yet the court here 20 found that § 1252(a)(2)(B)(ii) posed no bar to a challenge that “USCIS failed to follow the correct 21 procedure in revoking [an] I–140 petition[]” as opposed to granting one. 775 F.3d 1255, 1262 (11th 22 Cir. 2014) (emphasis added). She cites to Brasil v. Sec'y, Dep't of Homeland Sec., Opp’n at 9, 13-14, 23 yet that court declined to address exactly the type of claims alleged here. 28 F.4th 1189, 1194 (11th 24 Cir. 2022) (“We express no opinion about whether § 1252(a)(2)(B)(ii) precludes judicial review of 25 decisions made under § 1153(b)(2)(B)(i) when the issue involves the failure of USCIS to apply 26 the Dhanasar test or the failure to follow other agency procedures.”) In any case, neither Kurapati 27 nor Brasil are binding on this Court. Zhuravel also cites to Bouarfa v. Mayorkas, 604 U.S. 6 (2024) 28 to emphasize “the need to separate unreviewable exercises of discretion from reviewable legal and 1 || procedural compliance.” Opp’n at 3. However, the existence and importance of this separation are 2 || not contested here—the issue is whether Zhuravel has shown that her allegations fall into the latter 3 || category. But Zhuravel has not. 4 Thus, the Court finds that Zhuravel’s allegations are insufficient on their face to invoke 5 || subject matter jurisdiction. 6 B. Dismissal without leave to amend is proper. 7 Zhuravel argues that leave to amend is proper where the Court “believes the Complaint’s g | framing could be tightened to make the reviewable nature of the claim clearer.” Opp’n at 11. g || Defendants argue that amendment would be futile as Zhuravel cannot establish federal jurisdiction. 10 || Reply at 6; see Manzarek, 519 F.3d at 1034. In general, leave to amend a dismissed complaint 1] || should be freely granted unless it is clear the complaint could not be saved by any amendment. Fed. 12 | R. Civ. P. 15(a); Manzarek, 519 F.3d at 1031. Such condition is met here. The record already 13 || contains all three of Defendants’ decisions, and it makes clear that Zhuravel cannot allege additional 14 | facts or “tighten” her framing as she suggests in an amended complaint to overcome the bar of § 15 | 1252(a)(2)(B)Gi). Thus, the Court finds that leave to amend is not warranted. 16 IV. Conclusion 17 For the foregoing reasons, the Court GRANTS the Motion to Dismiss (Dkt. No. 16) without 18 || leave to amend and ORDERS as follows: 19 1. Zhuravel’s APA claim is DISMISSED WITHOUT LEAVE TO AMEND. 20 7] IT IS SO ORDERED.

23 Dated: March 13, 2026 24 MAAME EWUSI-MENSAH FRIMPONG 25 United States District Judge 26 27 28 || ° Because the Court finds that it lacks subject matter jurisdiction, it need not address the question of whether Zhuravel has failed to state a claim.