MEMORANDUM OPINION
I. INTRODUCTION
Plaintiffs Hugh O’Neill (“O’Neill”) and Elizabeth Bean (“Bean”) filed the present action on November 17, 2010 against Elliott Cook, Field Office Director of the United States Citizenship and Immigration Services (“USCIS”), London, United Kingdom; Perry Rhew, Chief, Administrative Appeals Office (“AAO”) of USCIS; Alejandro Mayorkas, Director of USCIS; Janet Napolitano, Secretary of the Department of Homeland Security; Eric Holder, Attorney General of the United States; and USCIS (collectively “defendants”). (D.I. 1 at 1) O’Neill is a native and citizen of Northern Ireland who has been deported from the United States on three separate occasions. (Id. at ¶¶ 31, 36, 39) On October 27, 2008, plaintiffs filed with USCIS Form 1-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal (the “1-212”), and Form 1-601, Application for Waiver of Inadmissibility (the “1-601”). (Id. at ¶¶ 41^12) USCIS denied both applications; O’Neill appealed the denial of the 1-212 to the AAO. (Id. at ¶¶ 43, 48) Plaintiffs allege that USCIS erred in denying the 1-212 and the 1-601, and that the AAO erred in dismissing the appeal. (Id. at ¶¶ 53-55).
Currently pending before the court is defendants’ motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. (D.I. 8) For the reasons that follow, the court grants defendants’ motion to dismiss.
II. BACKGROUND
On April 11, 1993, O’Neill was admitted to the United States for a period of 90 days under the Visa Waiver Program. (D.I. 1 at ¶ 27) O’Neill remained in the United States for almost ten years after the expiration date of his visa. (Id. at ¶ 28, 30) During this period, O’Neill fathered a daughter and met Bean, a U.S. citizen, with whom he had a son. (Id. at
On or around February 11, 2002, O’Neill re-entered the United States using his brother’s passport. (Id. at ¶ 32) O’Neill was again deported to the United Kingdom under a removal order dated December 15, 2003. (Id. at ¶36) On January 10, 2004, O’Neill re-entered the United States under the Visa Waiver Program on a new passport in his own name. (Id. at ¶ 37) O’Neill and Bean married in Delaware on April 16, 2004. (D.I. 1 at ¶ 38) O’Neill was again deported under a removal order dated March 20, 2006. (Id. at ¶ 39)
Under 8 U.S.C. § 1182(a)(9)(A)(ii),
On August 24, 2009, USCIS denied the 1-212, finding that O’Neill was “inadmissible” under § 1182(a)(9)(C)(i), as an alien who has been ordered removed and who enters or attempts to reenter the United States without being “admitted.” (Id. at ¶ 43) More specifically, the USCIS determined that O’Neill’s use of his brother’s passport in 2002 “is not an ‘admission’ ” under § 101(a)(13)(A).
On September 24, 2009, O’Neill filed an administrative appeal of the 1-212 with the AAO, contending that USCIS had erred in finding O’Neill to be subject to § 1182(a)(9)(C)(i). (D.I. 9, ex. 3) On May 24, 2010, the AAO dismissed O’Neill’s appeal, based on the following reasoning. The AAO correctly stated the grounds for the USCIS’s denial of the 1-212, that is, that O’Neill was “inadmissible pursuant to [§ 1182(a)(9)(C)®]” and “not eligible to apply for permission to reapply for admission because he had not remained outside the United States for the required ten years.” (D.I. 9, ex. 4 at 2) After indicating that “[t]he entire record was reviewed in
In that the field office director has found the applicant to be ineligible for a waiver of inadmissibility [1-601] ... and the applicant has failed to file a timely appeal, no purpose would be served in the favorable exercise of discretion in adjudicating the application to reapply for admission into the United States under [§ 1182(a)(9)(A)(iii) ]. Accordingly, the appeal of the field office director’s denial of the Form 1-212 will be dismissed as a matter of discretion.
(Id. at 3) In other words, the AAO reversed the order in which the USCIS decided the issues in this matter. Plaintiffs filed this suit seeking a declaratory judgment pursuant to 28 USC § 2201(a) on November 17, 2010. (D.I. 1 at 1)
On May 15, 2011, defendants moved to dismiss O’Neill’s complaint under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). (D.I. 8) Defendants argue that: (1) the court cannot grant O’Neill meaningful relief because O’Neill is inadmissible under multiple provisions of the INA, including both §§ 1182(a)(6)(C)(i) and 1182(a)(9)(C)(i); and (2) the court lacks subject matter jurisdiction over the denial of the 1-601 because discretionary agency decisions are not judicially reviewable. (D.I. 9 at 7-8) Plaintiffs assert, however, that: (1) the AAO erroneously declared O’Neill inadmissible under 8 U.S.C. § 1182(a)(6)(C)©; (2) O’Neill is not inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i); (3) relief can be given to the effect of allowing plaintiffs to apply for permission to reapply for admission to the United States within ten years even if O’Neill is inadmissible under other INA provisions; and (4) the court has subject matter jurisdiction because the USCIS’s denial of the 1-601 was not an exercise of discretion, but rather a refusal to render a decision, and because the AAO’s decision was factually and legally erroneous. (D.I. 10 at 7, 9-10, 12)
III. STANDARD OF REVIEW
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a corn-
B. Motion to Dismiss for Failure to State a Claim
Rule 12(b)(6) permits a party to move to dismiss a complaint for failure to state a claim upon which relief can be granted. The court must accept the factual allegations of the non-moving party as true and draw all reasonable inferences in its favor. See Erickson v. Pardus,
In deciding motions to dismiss pursuant to Rule 12(b)(6), courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim. A document forms the basis of a claim if the document is “integral to or explicitly relied upon in the complaint.” The purpose of this rule is to avoid the situation where a plaintiff with a legally deficient claim that is based on a particular document can avoid dismissal of that claim by failing to attach the relied upon document. Further, considering such a document is not unfair to a plaintiff because, by relying on the document, the plaintiff is on notice that the document will be considered.
Lum v. Bank of Am.,
IV. DISCUSSION
A. 1-601
Plaintiffs assert that the court possesses subject matter jurisdiction to review US-CIS’s decision to deny O’Neill’s 1-601 pursuant to the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq., 28 U.S.C. § 1331; the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.; and the All Writs Act, 28 U.S.C. § 1651. (D.I. 1 at 5-6) Plaintiffs argue that USCIS, in denying the 1-601 on the basis of O’Neill’s failed I-212, was actually refusing to exercise any discretion at all. (Id.) As such, according to plaintiffs, the court has jurisdiction over USCIS for unlawfully withholding agency action, pursuant to 5 U.S.C. § 706(1), and for rendering a nondiscretionary legal determination over which the jurisdictional bar at 8 U.S.C. § 1182(a)(2)(B)(ii) does not apply. (Id. at 9,11)
1. Standards
a. APA
The APA allows federal courts to review final agency actions “made reviewable by statute ... for which there is no other adequate remedy in court.” 5 U.S.C. § 704. The APA “operates in conjunction with” 28 U.S.C. § 1331, which provides that district courts have original jurisdiction over all civil actions that raise a federal question, creating “a presumption of federal question jurisdiction over
b. Declaratory Judgment Act
The Declaratory Judgment Act, 28 U.S.C. § 2201, states that the court may “declare the rights and other legal relations of any interested party seeking such declaration,” provided that there exists an “actual controversy within its jurisdiction.” Where the court lacks an independent basis for jurisdiction under other statutes, however, the court does not possess the “authority to issue a declaratory judgment.” Barbour v. Holder, Civ. No. 09-3062,
c. All Writs Act
Although plaintiffs do not specifically assert mandamus, the court finds it appropriate to consider such jurisdiction given plaintiffs’ claim that the AAO’s alleged error provides the court with jurisdiction, and given that plaintiff specifically asserts jurisdiction under the All Writs Act. See United States v. Christian,
2. Analysis
a. Jurisdiction under the APA
The USCIS concluded that O’Neill was inadmissible under § 1182(a)(9)(C) and, although USCIS is authorized to consent to O’Neill’s reapplying for admission by granting Form 1-212, USCIS had by then already denied O’Neill’s 1-212. (D.I. 1, ex. A) In USCIS’s judgment, it would “serve no purpose” to allow the 1-601 to proceed; consequently, USCIS denied the 1-601. Id.
USCIS’s decision to deny the 1-601 in the interest of conserving resources, therefore, was an appropriate exercise of agency discretion. Consequently, the court lacks subject matter jurisdiction to review the decision under the APA.
b. Jurisdiction under the Declaratory Judgment Act and the All Writs Act
Because the court lacks jurisdiction to review USCIS’s decision to deny the 1-601 under the APA, there is no independent basis for jurisdiction under either the Declaratory Judgment Act or the All Writs Act. Therefore, defendants’ motion to dismiss shall be granted as it relates to plaintiffs’ 1-601 claims.
B. 1-212
Plaintiffs allege that the AAO was factually erroneous in denying O’Neill’s 1-212 appeal, and this error of fact provides the court with jurisdiction. Although Pinho, as discussed supra, holds that an agency action must be non-discretionary for courts to retain jurisdiction under the APA, there is legal authority standing for the proposition that a court may retain jurisdiction over an agency decision where “important facts have been totally overlooked or seriously mischaracterized,” creating an error of law. Chen v. Napolitano,
As noted above, the AAO did, in fact, miseharacterize the record below. For purposes of this proceeding, the court will assume that the erroneous characterization is so substantial as to create an error of law, thereby conferring jurisdiction on the court. The court, therefore, will proceed to address defendants’ motion to dismiss
The court starts its analysis with the undisputed facts of record, that is, that O’Neill overstayed his 1993 admission to the United States by almost ten years, was deported in January 2002, fraudulently utilized his brother’s passport to gain reentry into the United States in February 2002, was thereafter deported in December 2002, reentered the United States in 2004 without complying with the requirements of the INA, and was deported once again in 2006. The court agrees with defendants that O’Neill is inadmissible under multiple provisions of the INA, including §§ 1182(a)(6)(C)(i) (an alien who seeks admission through fraud is inadmissible) and 1182(a)(9)(C)(i)(II) (an alien is inadmissible and ineligible for a waiver until ten years elapse from his last departure).
Despite the AAO’s mischaracterization of the procedural history of the matter, the fundamental decision of the AAO is consistent with that of the USCIS, to wit, because O’Neill is “inadmissible,” he is ineligible for a waiver of inadmissibility. Under these circumstances, the court concludes that it cannot grant plaintiffs meaningful relief; therefore, their complaint shall be dismissed under Rule 12(b)(6), because they have failed to state a claim upon which relief can be granted. See, e.g., Grewal v. U.S. Citizenship & Immigration Servs.,
Y. CONCLUSION
For the reasons stated, the court grants defendants’ motion to dismiss. An appropriate order shall issue.
ORDER
At Wilmington this 14th day of December, 2011, consistent with the memorandum opinion issued this same date;
IT IS ORDERED that defendants’ motion to dismiss (D.I. 8) is granted.
Notes
. Unless specifically noted infra, all further statutory references shall be to Title 8 of the United States Code, provisions of the Immigration and Nationality Act ("INA”).
. O’Neill had indicated in the 1-212 that his re-entry into the United States in 2002 constituted an admission-defined as the "lawful entry of an alien into the United States after inspection and authorization by an immigration officer.” § 101(a)(13)(A). In denying the 1-212, the USCIS described O’Neill as submitting "statements from yourself and your brother James O’Neill attesting to the fact that you fraudulently utilized a passport in your brother’s name to gain entry into the United States.” (D.I. 9, ex. 2 at 2)
. Noting that O'Neill’s "admission was gained by fraud because [he] had been previously removed from the United States and was aware that he required a waiver for his prior removals and his prior admission by fraud.” (D.I. 9, ex. 4 at 2)
. At least, that appears to be the case from the record at bar.
. In approaching the question of subject matter jurisdiction over USCIS’s denial of plaintiffs’ applications and the AAO's denial of O'Neill's appeal, it is necessary to first determine if defendants’ motion is a facial or factual attack. The court notes that defendants' brief (D.I. 9) does not explicitly attack subject matter jurisdiction over the AAO's decision, but it is presumably implied as part of "the remainder of O'Neill's complaint.” (D.I. 9 at 8) A facial attack concerns "an alleged pleading deficiency,” while a factual attack concerns "the actual failure of [a plaintiff’s] claims to comport [factually] with the jurisdictional prerequisites.” CNA,
. Plaintiffs also contend that the court retains jurisdiction over the AAO's denial of the 1-212 because the AAO refused to adjudicate O’Neill's appeal on the basis of erroneous facts and, thus, the AAO’s finding is nondiscretionary. (D.I. 10 at 12) The 1-212 will be addressed under Rule 12(b)(6).
. See also §§ 1182(a)(9)(A)(ii)(II) and (a)(9)(B), which provisions also make him inadmissible as an alien previously removed, an alien unlawfully present after previous immigration violations, and an alien subject to the ten-year bar.