594 F. App'x 580
11th Cir.2014Background
- Heslop, a U.K. citizen, was admitted as a conditional permanent resident on Nov. 2, 2005 based on an "alien entrepreneur" petition (EB-5) that requires creating ≥10 full‑time U.S. jobs. USCIS later found he had produced only 2 full‑time employees and denied removal of that condition.
- On Dec. 15, 2010 USCIS vacated an earlier denial but again denied his petition to remove the entrepreneur condition. Heslop married a U.S. citizen and obtained conditional permanent resident status based on marriage on May 18, 2011. He did not allege removal of that marital condition.
- Heslop applied for naturalization on Nov. 11, 2011, claiming the five‑year continuous residence period began Nov. 2, 2005. USCIS denied the application, treating May 18, 2011 as the relevant admission date because the EB‑5 condition was not satisfied. An immigration officer affirmed the denial.
- Heslop sued under 8 U.S.C. § 1421 (de novo review of naturalization denial) and the APA (5 U.S.C. § 706), alleging the agency wrongfully treated his admission as May 18, 2011 and that the denial was arbitrary and capricious. Defendants moved to dismiss for failure to state a claim and lack of jurisdiction.
- The district court dismissed: (1) INA claim because conditional residents are ineligible for naturalization and because Heslop hadn’t plausibly alleged five years of lawful permanent residence starting Nov. 2, 2005; (2) APA claim for lack of jurisdiction because the INA provides an adequate remedy. The court denied reconsideration. Heslop appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Heslop pleaded eligibility for naturalization under INA § 1427(a)(1) (five years after being lawfully admitted for permanent residence) | Heslop: he was lawfully admitted as of Nov. 2, 2005 (EB‑5) so the five‑year period was satisfied | Government: Heslop is a conditional resident (marriage‑based) with no allegation the marital condition was removed; even if marital condition removed, he cannot show he was lawfully admitted on Nov. 2, 2005 because EB‑5 condition was unsatisfied | Affirmed dismissal; Heslop abandoned challenge to the alternative ground (ineligibility as conditional resident) and failed to plausibly allege five years after lawful admission |
| Whether the APA provides independent review of the naturalization denial | Heslop: APA review is available to set aside USCIS decision as arbitrary/capricious | Government: INA § 1421(c) provides an adequate, exclusive judicial remedy (de novo review), so APA is not available | Affirmed dismissal for lack of jurisdiction; INA provides an adequate remedy, APA does not add to INA review |
| Whether the district court abused its discretion denying reconsideration | Heslop: challenged the denial of reconsideration on appeal (but made no arguments in brief) | Government: denial not challenged on appeal | No abuse identified; issue abandoned for lack of appellate argument |
| Scope of appellate review standard | N/A (procedural) | N/A | Court applied de novo review to dismissals and abuse‑of‑discretion to reconsideration denial |
Key Cases Cited
- Adinolfe v. United Techs. Corp., 768 F.3d 1161 (11th Cir. 2014) (standard for Rule 12(b)(6) review and accepting well‑pleaded allegations)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standards for plausibility)
- Maradiaga v. United States, 679 F.3d 1286 (11th Cir. 2012) (standard for Rule 12(b)(1) review)
- Equity Inv. Partners, LP v. Lenz, 594 F.3d 1338 (11th Cir. 2010) (abuse‑of‑discretion review for reconsideration denials)
- Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014) (issues not properly argued on appeal are abandoned)
- Escaler v. U.S. Citizenship and Immigration Servs., 582 F.3d 288 (2d Cir. 2009) (INA’s de novo review can supplant APA review for naturalization denials)
- Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316 (11th Cir. 2012) (failure to brief an appellate issue results in abandonment)