O'Neill v. Cook, 828 F. Supp. 2d 731

O’Neill is a NI native who overstayed a 1993 visa waiver admission and was deported multiple times; he later married Bean, a U.S. citizen.
O’Neill and Bean filed Form I-212 (readmission after deportation) and Form I-601 (waiver) with USCIS London on Oct 27, 2008.
USCIS denied the I-212 as inadmissible under INA §1182(a)(9)(C); the I-601 was denied as a discretionary matter after the I-212 denial.
AAO dismissed O’Neill’s administrative appeal, mischaracterizing the record and potentially reversing the order of adjudication.
Plaintiffs filed suit on Nov 17, 2010 seeking declaratory relief; defendants moved to dismiss under Rule 12(b)(6) and 12(b)(1).
Court grants defendants’ motion to dismiss for lack of subject matter jurisdiction and failure to state a claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has APA jurisdiction to review the 1-601 denial	O’Neill argues non-discretionary agency action reviewable	1-601 denial is discretionary; no APA review	Lacks jurisdiction; 1-601 denial discretionary
Whether Declaratory Judgment and All Writs Act furnish independent jurisdiction	There is non-discretionary review via APA or mandamus	No independent basis without APA review	No independent jurisdiction; claims dismissed
Whether the AAO’s mischaracterization of the 1-212 record supports review of the 1-212	Mischaracterization created error of law permitting review	Even with error, court lacks relief; 1-212 legally ineligible	Dismissed under Rule 12(b)(6); ineligibility precludes relief

Exxon Corp. v. Hunt, 683 F.2d 69 (2d Cir. 1982) (establishes standard for discretionary agency decisions and jurisdictional limits)
Lum v. Bank of Am., 361 F.3d 217 (3d Cir. 2004) (uses framework for reviewing documents and basis for claims in 12(b)(6) context)
Gotha v. United States, 115 F.3d 176 (3d Cir. 1997) (discusses scope of jurisdiction when reviewing court records)