Tang v. United StatesTang v. United States
Plaintiffs Tony Tang and Gilberto Torres (“Plaintiffs“) bring a three-count putative class action complaint against Defendant United States of America (“Defendant“) under the Little Tucker Act,
This Opinion and Order addresses Defendant‘s motion seeking dismissal of the complaint under Rule 12(b)(1) for lack of subject matter jurisdiction, dismissal of the complaint under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and judgment on the pleadings under Rule 12(c). (Docket entry no. 42.) The Court has considered carefully the parties’ submissions5 (docket entry no. 43 (“Def. Mem.“); docket entry no. 56 (“Pls. Mem.“); docket entry no. 65 (“Def. Reply“); docket entry no. 89 (“Def. Supp.“); docket entry no. 90 (“Pls. Supp.“)),6 and, for the reasons set forth below, Defendant‘s motion to dismiss the complaint is granted for lack of subject matter jurisdiction.
I. BACKGROUND
Unless otherwise noted, the following recitation is drawn from the Complaint, the well-pleaded factual allegations of which are taken as true for the purposes of this motion practice.7
Prior to 1988, USCIS‘s predecessor agency, United States Immigration and Naturalization Services (“INS“),8 collected a variety of fees for processing and adjudicating immigration and naturalization applications pursuant to regulations that it promulgated under the Independent Offices Appropriations Act of 1952 (“IOAA“). See Ayuda Inc. v. Att‘y Gen., 848 F.2d 1297, 1298-1300 (D.C. Cir. 1988) (describing INS‘s authority under the IOAA); Barahona v. Napolitano, No. 10-CV-1574-SAS, 2011 WL 4840716, at *2 (S.D.N.Y. Oct. 11, 2011) (same). The IOAA permitted federal agencies to collect user fees for “a service or thing of value provided by the agency.”
In 1988, Congress created the Immigration Examinations Fee Account (“IEFA“). Pub. L. No. 100-459, § 209(a), 102 Stat. 2186, 2203 (1988). Among other things, the IEFA added subsection (m) to
In 1990, Congress amended section 1356(m). Act of Nov. 5, 1990, Pub. L. No. 101-515, § 210(d), 104 Stat. 2101, 2121. This amended version was in effect from December
(m) Immigration Examinations Fee Account
Notwithstanding any other provisions of law, all adjudication fees as are designated by the Attorney General in regulations shall be deposited as offsetting receipts into a separate account entitled “Immigration Examinations Fee Account” in the Treasury of the United States, whether collected directly by the Attorney General or through clerks of courts: . . . Provided further, That fees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. Such fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected.
B. USCIS‘s Biometric Services Fee
Certain immigration and naturalization applications—such as an application for permanent residence (“green card“), an application to renew a green card, and an application for naturalization—require payment of a fee for “biometric services,” separate and apart from the fee for the application itself. (Compl. ¶ 6.) The biometric fee is charged along with the application fee. (Id.) USCIS has explained that the biometric fee covers four costs: (1) “FBI Name Checks“; (2) “FBI fingerprints“; (3) “Application Support Center (ASC) contractual support“; and (4) “Biometric service management overall, including federal employees at the ASC locations.” (Id. ¶ 7.)
USCIS set the biometric fee at $80 in 2007. See Adjustment of the Immigration and Naturalization Benefit Application and Petition Fee Schedule, 72 Fed. Reg. 29851, 29852 (May 30, 2007) (effective July 30, 2007); U.S. Citizenship and Immigration Services Fee Schedule, 75 Fed. Reg. 58962, 58963 (Sept. 24, 2010) (effective Nov. 23, 2010). From
(b) Amounts of fees—
(1) Established fees and charges— . . .
(C) Biometric services fee. For capturing, storing, and using biometric information (Biometric Fee). A service fee of $85 will be charged to pay for background checks and have their biometric information captured, stored, and used for any individual who is required to submit biometric information for an application, petition, or other request for certain immigration and naturalization benefits (other than asylum or refugee status) or actions. USCIS will not charge a biometric services fee when: [an applicant submits various types of applications].
C. USCIS‘s Reuse of Biometrics and Background Checks
The first time an immigrant submits an application to USCIS that requires payment of the $85 biometric fee, the immigrant goes an Application Support Center (“ASC“) to have their biometric information (i.e., fingerprints, photo, and signature) collected. (Compl. ¶ 8 & n.8.) USCIS then submits that biometric information to the FBI for a fingerprints check. (Id.) USCIS also submits the applicant‘s name to the FBI for an FBI name check. (Id.) The FBI
USCIS has a policy and practice of reusing previously collected biometrics and so, once USCIS receives an applicant‘s biometrics, it often does not re-collect biometrics when the applicant files another qualifying application, although the applicant pays another $85. (Id. ¶ 11.) This policy is intended to increase efficiency and reduce backlog and delays. (Id.) USCIS began this practice no later than March 2016, and it reuses around 1.9 million biometric sets every year. (Id.)
In addition to reusing biometric information, USCIS also reuses the results of fingerprints checks and name checks. (Id. ¶ 13.) Under USCIS policy, FBI fingerprints checks and FBI name checks remain valid for 15 months. (Id. ¶ 15.) Accordingly, USCIS often does not run a new fingerprints check or a new name check if the applicant‘s prior, successful checks occurred within the past 15 months. (Id.)
If USCIS reuses an applicant‘s previously collected biometrics, USCIS will send a “Biometric Reuse Notice” to the applicant. (Id. ¶ 14.) The Notice “informs [the applicant] that USCIS is able to reuse your previously captured fingerprints and other biometrics . . . [and] it is not necessary for you to appear at a USCIS Application Support Center (ASC) for a biometrics appointment.” (Id. (emphasis omitted).) The Notice also states that “USCIS will run the same security checks and use your biometric data as in the past,” referring to USCIS‘s policy of reusing background and name checks if, in the preceding 15 months, the applicant had a prior,
D. Plaintiffs’ USCIS Applications
Both Plaintiffs paid multiple biometric service fees on their paths to citizenship. (Id. ¶ 16.) Each also received at least one Biometric Reuse Notice, indicating that USCIS had re-used their biometrics. (Id.) Plaintiffs also allege that USCIS did not order new name checks or new fingerprints checks and instead reused previously performed name checks and fingerprints checks when they made new applications, although Plaintiffs paid the full $85 fee with each of their applications.10 (Id. ¶¶ 16-18.) On Plaintiff Tang‘s path to becoming a U.S. citizen, he paid a total of two biometric services fees—one in October 201611 and one in December 2021. (Am. Weselmann Decl. ¶¶ 5, 11.) Likewise, on Plaintiff Torres Gomez‘s path to becoming a U.S. citizen, he paid a total of three biometric services fees—one in January 201212 and two in April 2022. (Id. ¶¶ 18, 21, 23.)
E. USCIS‘s Fee-Setting Process: Cost-per-applicant Plus Cost Reallocation
Under the Chief Financial Officer Act (“CFO Act“),
USCIS follows a three-step process in setting its fees, including the biometric services fee: (1) application of the activity-based costing (“ABC“) model; (2) cost reallocation for unpaid services; and (3) cost reallocation for policy reasons. (Id. ¶¶ 22-36.) At step one, USCIS calculates the cost-per-applicant of each immigration benefit request processed by USCIS, including the biometric services benefit request. (Id. ¶¶ 23-29.) At steps two and three, USCIS adjusts the cost-per-applicant, reallocating costs for unpaid services and for policy reasons. (Id. ¶¶ 30-36.) The below table summarizes the three steps in USCIS‘s fee-setting process. The “Model Output” column refers to the cost-per-applicant calculated in step one: $75. (Id. ¶ 34.) The “Cost Reallocation” column refers to the cost-per-applicant reallocation calculated in steps two and three: $0. (Id.) Thus, for the biometric services benefit request, the three-step process resulted in the sum of the “Model Output” ($75) and the “Cost Reallocation” ($0); that sum was $75. (Id. ¶¶ 37-39.)
When USCIS set fees in 2016, it set the fee for each type of benefit request equal to the value generated by the three-step process (i.e., cost-per-applicant of that request plus cost reallocation)—except for the challenged biometric services fee (and one other, rarely imposed
The way USCIS set the 2016 biometric fee was also contrary to its past practices. (Id. ¶ 39.) Previously, in 2010 and 2007, USCIS set almost every single fee—including the biometric services fee—at the cost-per-applicant plus cost reallocation, as calculated by the three-step process. (Id. ¶ 40.) There was only one exception in 2010 and 2007.14 (Id.)
In other words, except for the biometric services challenged fee here, USCIS has almost always followed its three-step process, setting the final fee equal to the calculated cost-per-applicant plus any specified cost reallocation. (Id. ¶¶ 39-40.) In its 2016 rulemaking, USCIS explained its reasoning for departing from its usual practice when it set the challenged biometric services fee as follows:
While the model calculated a biometric services fee of $75, DHS [Department of Homeland Security, which is the parent agency of USCIS] believes that the importance of and uncertainty in the biometric services area justifies holding that fee at $85. . . . Over the next few fiscal years the volume of requests for biometrics services, as well as the costs associated with those services, such as fees paid to the FBI for fingerprints and name checks, are uncertain. Therefore, a moderate amount above current full cost recovery calculation is justified to shield USCIS from that uncertainty. In addition, DHS proposes to use its discretion in setting this fee to hedge against potential rising programmatic costs which USCIS cannot foresee or control. For example, new regulatory or statutory
background check requirements may be borne out of increased national security concerns dictated by events or changing circumstances.
U.S. Citizenship and Immigration Services Fee Schedule, 81 Fed. Reg. 26904, 26917 (May 4, 2016); (see also Compl. ¶ 37 n.51).
F. USCIS‘s Failure to Consider Reuse in Calculating Cost-per-applicant
Plaintiffs further argue that even the $75 cost-per-applicant calculated by USCIS in step one was inflated because USCIS did not consider that the cost of performing biometric services is lower when USCIS reused biometrics and FBI background checks, the latter of which include both fingerprints checks and name checks. (Compl. ¶ 43.) “In 2007, the costs of collecting biometrics and running background checks corresponded to 49.7% and 36.2%, respectively, of the total cost for performing biometric services.” (Id.) Assuming those proportions apply to the challenged 2016 rule, when USCIS charged the full $85 biometric fee but did not collect biometrics, the agency pocketed about 50% of the $85 fee as “profit.” (Id.) When USCIS charged the full $85 biometric fee but does not run new background checks, it pocketed about 64% of the $85 fee as “profit.” (Id.) And, when USCIS charged the full $85 biometric fee but neither collected biometrics nor ran new background checks, it pocketed about 86% of the $85 fee as “profit.” (Id.) USCIS reused around 1.9 million biometrics per year and “some number” of background checks. (Id.) Per Plaintiffs’ calculations, each of those 1.9 million reuses likely yielded USCIS a “profit” of at least 50% of the $85 fee, and many of them likely yielded an even higher “profit” of almost 86%. (Id.)
USCIS has confirmed that it did not account for reuse of biometrics or background checks when it set the biometric services fee that was in effect from December 23, 2016 to March 31, 2024. (Id. ¶¶ 44-47.) In 2020, USCIS created a rule that would account for reuse (id. ¶ 48), but the rule was enjoined by two federal district courts before it could take
G. Plaintiffs’ Statutory Claim
Plaintiffs claim USCIS violated
This alleged statutory violation, according to Plaintiffs, was an “illegal exaction” by USCIS that is actionable under the Little Tucker Act,
H. Plaintiffs’ Regulatory Claims
Plaintiffs also claim that USCIS violated
Plaintiffs interpret the term “and” in section 103.7(b)(1)(i)(C) to be conjunctive.15 (Pls. Mem. at 38.) Thus, Plaintiffs contend, USCIS must perform all four services (background check, biometric capture, biometric storage, and biometric use) when it charges the biometric services fee. (See Compl. at 3-4, ¶¶ 51-56.) Plaintiffs allege that “USCIS violates its own implementing regulation for biometric fees [section 103.7(b)(1)(i)(C)] when it charges applicants
This alleged regulatory violation, according to Plaintiffs, was an “illegal exaction” by USCIS that is actionable under the Little Tucker Act,
II. DISCUSSION
Defendant‘s motion seeks dismissal of the Complaint on three grounds: dismissal under
“A case is properly dismissed for lack of subject matter jurisdiction under
As noted above, Plaintiffs bring their putative class action under the Little Tucker Act, which waives sovereign immunity for certain money-damages claims of less than $10,000
Congress has, however, stripped courts of jurisdiction to review various actions that involve the exercise of discretion by the Secretary of Homeland Security, who leads the Department of Homeland Security, USCIS‘s parent agency.
A. Section 1252(a)(2)(B)(ii) Strips the Court of Subject Matter Jurisdiction
Section 1252(a)(2)(B)(ii) precludes federal court review of USCIS actions “when a specified statute itself commits a particular decision to the discretion” of USCIS. Ruiz v. Mukasey, 552 F.3d 269, 274-75 (2d Cir. 2009). In determining whether the jurisdiction-stripping provision of section 1252(a)(2)(B)(ii) applies, “[t]he question is not whether [USCIS‘s decision] require[s] an exercise of discretion.” Nethagani v. Mukasey, 532 F.3d 150, 154 (2d Cir. 2008). Rather, the question is whether the authorizing statute “‘specifie[s]’ that the ‘decision’ is ‘in the discretion of [USCIS].‘” Id. (quoting section 1252(a)(2)(B)(ii)). The parties dispute whether
fees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. Such fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected.
Having established that the word “may” clearly connotes discretion, the Court reviews the rest of the statutory provision to determine whether other language acts to cabin the discretion that “may” confers. It contains no such language. Rather, it contains additional flexible language, providing that fees “may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without
Thus, section 1356(m) does not preclude USCIS from ensuring sufficiency by making provision for contingencies, nor does it place any limitation or cap on how to compute or set fees. See Paz v. Mayorkas, 767 F. Supp. 3d 368, 379 (E.D. Tex. 2025) (Ҥ 1356(m) lacks any
In sum, the plain text of section 1356(m) vests USCIS with discretion to set the biometric fee and provides no further limitations on that discretion. Accordingly, section 1252(a)(2)(B)(ii) precludes judicial review.18
In their opposition papers, Plaintiffs point to Nethagani v. Mukasey, in which the Second Circuit held that, “when a statute authorizes the Attorney General to make a determination, but lacks additional language specifically rendering that determination to be within his discretion (e.g., ‘in the discretion of the Attorney General,’ ‘to the satisfaction of the Attorney General,’ etc.), the decision is not one that is ‘specified . . . to be in the discretion of the Attorney General’ for purposes of § 1252(a)(2)(B)(ii).” 532 F.3d 150, 154 (2d Cir. 2008) (emphasis added). According to Plaintiffs, Nethagani establishes a “bright-line rule” for jurisdiction stripping under section 1252(a)(2)(B)(ii). (Pls. Mem. at 27.) Plaintiffs essentially seek to graft a “magic words” standard onto section 1252(a)(2)(B)(ii). (Id. at 28.) While certain words clearly invoke discretion—such as, “in the discretion of the Attorney General” and “to the satisfaction of the Attorney General“—those precise “magic words” are not required to strip the court of jurisdiction under section 1252(a)(2)(B)(ii). When the Nethagani Court listed illustrative types of language that would confer discretion, it explicitly indicated—by using the term “etc.“—that the illustrations were not the exclusive formulations that could convey discretion. 532 F.2d. at 154 (“e.g., ‘in the discretion of the Attorney General,’ ‘to the satisfaction of the Attorney General,’ etc.” (emphasis added)). Indeed, as explained supra pp. 17-20, section 1356(m) uses language that is inherently indicative of discretionary authority.
Bouarfa v. Mayorkas is illustrative of the flaws in Plaintiffs’ reasoning. 604 U.S. 6 (2024). There, the Supreme Court held that judicial review jurisdiction was stripped by
Next, Plaintiffs point to the fact that several courts have addressed challenges to section 1356(m) on the merits as an indicator of the existence of subject matter jurisdiction in the instant circumstances. See Immigrant Legal Res. Ctr., 491 F. Supp. 3d at 526; Nw. Immigrant Rts. Proj., 496 F. Supp. 3d at 41. The cited decisions are immaterial because none of those courts addressed the issue of subject matter jurisdiction under section 1252(a)(2)(B)(ii). Without subject matter jurisdiction, the Court is powerless to hear a case, even if other courts have entertained similar cases. United States v. Cotton, 535 U.S. 625, 630 (2002) (“[S]ubject-matter jurisdiction . . . involves a court‘s power to hear a case.“). Subject matter jurisdiction “can never be forfeited or waived,” id., and courts “have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party,” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). The silence of other courts on the issue does not establish that this Court has subject matter jurisdiction of Plaintiffs’ challenge.
Lastly, Plaintiffs contend that section 1252(a)(2)(B)(ii) is “beside the point” because the issue is not “about how USCIS used its discretion under § 1356(m),” but rather “whether USCIS exceeded the discretion afforded to the Agency by statute.” (Pls. Mem. at 26 n.7 (emphasis in original).) According to Plaintiffs, section 1356(m) does not vest USCIS with discretion to “set fees at a level that would exceed its projected costs.” (Id. at 32.) Thus, in Plaintiffs’ view, section 1252(a)(2)(B)(ii) does not apply where, as here, USCIS allegedly violated section 1356(m) “because it failed to allocate any costs to justify $10 out of $85.” (Id. at 26 n.7 (emphasis in original); see also id. at 31-36 (arguing that USCIS violated section 1356(m)); Pls. Supp. at 2 (arguing “that USCIS exceeded its statutory authority—discretionary or not—to set fees under § 1356(m)“).) In other words, Plaintiffs frame the issue as one regarding the scope of authority, or discretion, conferred by section 1356(m). Under Plaintiffs’ view, the ultimate inquiry is whether section 1356(m) prohibits USCIS from setting “fees at a level that would exceed its projected costs.” (Pls. Mem. at 32.) Nothing on the face of the statute, however, constrains USCIS to any specific formula to set the biometric services fee. Rather, as explained supra pp. 17-20, section 1356(m) confers discretion on USCIS in setting the biometric services fee.
C. The Only Other Court to Consider This Issue is in Accord
The issue before the Court appears to be one of first impression in this Circuit and to courts in most of the country. To the best of the Court‘s knowledge, only one other court has ever addressed this issue. Paz v. Mayorkas, 767 F. Supp. 3d 368 (E.D. Tex. 2025). Like Plaintiffs here, the plaintiffs in Paz challenged the biometric services fee charged by USCIS, and
III. CONCLUSION
For the foregoing reasons, Defendant‘s motion to dismiss the complaint under
SO ORDERED.
Dated: New York, New York
September 1, 2026
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge
Notes
The Court also notes that section 1356(m) refers to the “Attorney General” in connection with the setting and receipt of the relevant fees. This anachronism does not affect the Court‘s determinations here, because INS, which was part of the Department of Justice, has been dissolved and its responsibilities subsumed by the Department of Homeland Security. Regulatory authority under section 1365(m) was transferred to the Secretary of Homeland Security on March 1, 2003. See Chamber of Com. of United States v. United States Dep‘t of Homeland Sec., 815 F. Supp. 3d 73, 104 n.10 (D.D.C. 2025).
Setting aside the issue of whether Kucana is limited to the precise question before it (whether section 1252(a)(2)(B)(ii) applies when the Attorney General deemed a decision discretionary through regulation) and the fact that section 1252(a)(2)(B)(ii) explicitly applies “regardless of whether the judgment, decision, or action is made in removal proceedings,” section 1356(m) is of a “like kind” with the enumerated statutes, all of which involve matters relating to permission to remain in the country. See iTech U.S., Inc. v. Renaud, 5 F.4th 59, 65-66 (D.C. Cir. 2021) (distinguishing Kucana on those two grounds). Because section 1356(m) sets fees for the processes that govern the very decision about whether an individual may stay in the United States or must leave, it is “inherently related” to those processes and decisions. See Paz, 767 F. Supp. 3d at 380. The administrative fee structure and the services it funds are elements of that decision-making process.