中国EB3诉讼国务院移民局的律师最近接到法院的通知，联邦法官批准了政府撤销EB3C集体诉讼的动议。
律师说这个决定very weakly reasoned。 我们正在讨论下一步的策略, 是否在60天
内上诉。先向大家通报一下，大家有意见和建议，请发电邮至：eb3chinese@yahoo.com
I. INTRODUCTION
This matter comes before the court on Defendants’ motion to dismiss (Dkt. #
23).The court has considered the parties’ briefing and supporting evidence
, and has heard from the parties at oral argument. For the reasons explained
below, the court GRANTS the motion (Dkt. # 23).
II. BACKGROUND
Plaintiffs are individuals from China who are seeking to acquire permanent
resident status in the United States. Compl. ¶ 1.1 Plaintiffs filed
this putative class action to allege that the Defendants — who include the
United States, United States Department
1 Hereinafter, this order refers to paragraphs in the Complaint (Dkt. # 1)
using bare “¶”marks.
of State (“State Department”), the United States Department of Homeland
Security (“DHS”), United States Citizenship and Immigration Services (“
USCIS”), and the respective agency heads — violated the provisions of the
Immigration and Nationality Act (“INA”) relating to the allocation of
employment-based third-preference (“EB-3”) immigrant visa numbers. Id.
Specifically, Plaintiffs allege that in fiscal years 2008 and 2009,
Defendants violated INA § 203(e) by not adhering to the priority-date order
set out by the statute. The named Plaintiffs claim that their applications for
adjustment of status have been unlawfully delayed as a result of Defendants
’ conduct. See ¶¶ 8-12.
The Defendants filed a motion to dismiss Plaintiffs’ lawsuit, on the basis
that Plaintiffs lack standing and, in the alternative, the Plaintiffs have
failed to state a claim.
III. ANALYSIS
A. Legal Standards.
When considering a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), “the court is to take all well-
pleaded factual allegations as true and to draw all reasonable inferences
therefrom in favor of the plaintiff.” Wyler Summit P’ship v. Turner
Broadcasting Sys., Inc., 135 F.3d 658, 663 (9th Cir. 1998). Facts alleged in
the complaint are assumed to be true. See Lipton v. Pathogenesis Corp., 284
F.3d 1027, 1030 n.1 (9th Cir. 2002). The issue to be resolved on a motion
to dismiss is whether the plaintiff is entitled to continue the lawsuit to
establish the facts alleged, not whether the plaintiff is likely to succeed
on the merits. See Marksman Partners L.P. v. Chantal Pharm. Corp., 927 F.
Supp. 1297, 1304 (C.D. Cal. 1996).
A complaint must provide more than a formulaic recitation of the elements of
a cause of action, and must assert facts that “raise a right to relief
above the speculative level.” Bell Atlantic Corp. v. Twombly, 127 S. Ct.
1955, 1965 (2007). The Ninth Circuit has summarized Twombly’s plausibility
standard to require that a complaint’s “nonconclusory ‘factual content,’
and reasonable inferences from that content, must be plausibly suggestive
of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service,
572 F.3d 962, 969 (9th Cir. 2009) (citing Ashcroft v. Iqbal, 129 S. Ct.
1937,1949 (2009)). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal,
129 S. Ct. at 1949.
B. Plaintiffs Lack Standing to Bring this Lawsuit Against the State
Department.Plaintiffs’ claims are brought under the Administrative Procedures Act (“
APA”),which authorizes lawsuits by a “person suffering legal wrong because
of agency action, or adversely affected or aggrieved by agency action
within the meaning of a relevant statute.” 5 U.S.C. § 702. The APA also
authorizes suits based on an agency’s failure to act, if “agency action [
is] unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). A
court may compel an agency only to take a discrete action required by law;
the APA does not provide relief for a plaintiff seeking to improve an agency
program or to direct an agency to exercise its discretion in a particular
way. See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64-65 (
2004).
Before considering the Plaintiffs’ specific allegations, a background in EB
-3 immigrant visas must be considered. An immigrant’s eligibility to apply
for an immigrant visa is determined by the preference category (EB-3, in
this case) and priority date. The EB-3 visa application procedure begins
when an employer files an immigrant visa petition or an application for
labor certification with the United States Department of Labor (“DOL”),
requesting a certification that there are no qualified workers in the United
States available for a job opening. See 8 U.S.C. § 1182. The date that
this application or petition is submitted to the DOL is considered the “
priority date.” See 8 C.F.R. § 204(d).
If DOL approves the certification request, then the employer may file a
petition for alien worker, requesting that USCIS approve the alien in the EB
-3 category, and then the alien may file an application for adjustment of
status with USCIS once the alien’s priority date becomes current. See 8 U.S
.C. § 1255(a). USCIS adjudicates applications for adjustment of status
within its statutory discretion. See 8 U.S.C. § 1255(a). USCIS promulgated
8 C.F.R. § 245.2(a)(5)(ii) to explain that USCIS may not approve an
application for adjustment of status until the State Department allocates a
visa number for that alien. The request for a visa number is triggered by
USCIS’s determination that the applicant is eligible for adjustment of
status, after which point USCIS enters the alien’s information in the State
Department’s Immigrant Visa Allocation Management System (“IVAMS”).
Federal law vests authority for controlling the availability of visa numbers
in the State Department. See 22 C.F.R. § 42.51; 8 U.S.C. § 1153(g). The
State Department’s Visa Office makes monthly allocations of visa numbers in
compliance with the applicable statutory formulas, taking into account the
monthly and quarterly limits, the numerical allocation for each preference
category, country-specific limitations, and annual limits.
See, e.g., 8 U.S.C. § 1151 (worldwide limit); 8 U.S.C. § 1152 (country-
specific limits).State Department documents explain the allocation process:
At the beginning of each month, the Visa Office (VO) receives a report for
each consular post listing totals of documentarily qualified immigrant visa
applicants in categories subject to numerical limitation. Cases are grouped
by foreign state chargeability/preference/priority date.
No names are reported. . . . During the first week each month, this
documentarily qualified demand is tabulated.
VO subdivides the annual preference and foreign state limitations specified
by the INA into monthly allotments. The totals of documentarily qualified
applicants which have been reported to VO, are compared each month with the
numbers available for the next regular allotment. The determination of how
many numbers are available requires consideration of several of variables,
including: past number use; estimates of future number use and return rates;
and estimates of additional [USCIS] demand based on cut-off date movements.
Once this is done, the cut-off dates are established and numbers are
allocated to reported applicants in order of their priority dates, the
oldest dates first.
If there are sufficient numbers in a particular category to satisfy all
reported documentarily qualified demand, the category is considered “
Current”. For example: If the monthly allocation target is 3,000 and we
only have demand for 1,000 applicants the category can be “Current”.
Whenever the total of documentarily qualified applicants in a
category exceeds the supply of numbers available for allotment for the
particular month, the category is considered to be “oversubscribed” and a
visa availability cut-off date is established. The cut-off date is the
priority date of the first documentarily qualified applicant who could not be
accommodated for a visa number. For example: If the monthly target is
3,000 and we have demand for 8,000 applicants, then we would need to
establish a cut-off date so that only 3,000 numbers would be allocated. In
this case, the cut-off would be the priority date of the 3,001st applicant.
Only persons with a priority date earlier than a cut-off date are
entitled to allotment of a visa number. . . .
Not all numbers allocated are actually used for visa issuance; some
are returned to VO and are reincorporated into the pool of numbers available
for later allocation during the fiscal year. . . .
When visa demand by documentarily qualified applicants from a particular
country exceeds the amount of numbers available under the annual numerical
limitation, that country is considered to be oversubscribed.
Oversubscription may require the establishment of a cutoff date which is
earlier than that which applies to a particular visa category on a worldwide
basis. The prorating of numbers for an oversubscribed country follows the
same percentages specified for the division of the worldwide annual
limitation among the preferences. . . .
State Department Administrative Record (Dkt. # 21) at 4-6 (emphasis added).
In this lawsuit, Plaintiffs seek review of the State Department’s visa cut-
off dates in fiscal years 2008 and 2009 (because they contend that dates
were based on arbitrary and capricious estimates), and they further allege
that the State Department misallocated visa numbers because they failed to
maintain waiting lists as required by 8 U.S.C. § 1153(e)(3). Though
Plaintiffs also name USCIS as a Defendant with regard to those allocations,
they have not cited any statutory authority requiring USCIS to participate
in the establishment of cut-off dates or the maintenance of waiting lists.2
2 The Plaintiffs cite only 8 U.S.C. § 1153(e) as the source of the duty
imposed on USCIS, but that statute does not mention USCIS, let alone impose
any duty on USCIS. The statute references only the Secretary of State.
Though at oral argument Plaintiffs’ counsel instructed the court to look at
the overall structure of the immigrant visa program in order to determine
USCIS’s duties, an APA claim must be based upon a plaintiff’s
identification of a “particular ‘agency action’ that causes it harm.”
Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 891 (1990).
Thus, Plaintiffs have failed to state an APA claim against USCIS, and the
remainder of the court’s order will address the allegations regarding the
State Department. Defendants argue that Plaintiffs lack standing to pursue
claims against the State Department because (1) to the extent that visa
numbers were allocated improperly in fiscal years 2008 and 2009, those
numbers cannot be recaptured and then reallocated at this time, and (2) to
the extent that the Plaintiffs request prospective relief, this court cannot
order an agency to ignore the Congressionally imposed limitations on
visanumber allocation.
1. Plaintiffs Have Not Provided Any Authority for a Court-Ordered
Allocation of Visa Numbers From a Previous Fiscal Year During This
Fiscal Year.
Plaintiffs request that this court find that the State Department
misallocated visa numbers in fiscal years 2008 and 2009, and that the court
order that the State Department recapture the misallocated and unused visa
numbers and allocate them during this fiscal year. Prayer for Relief ¶&
para; 7-8. The Plaintiffs have not, however, provided any authority showing
that the State Department can recapture visa numbers from a previous year
and allocate them in a current year. It is true that in specific
circumstances, Congress has provided for the recapture and reallocation of
visa numbers (see Oppenheim Decl. (Dkt. #
36-1)), but in general, the State Department’s visa-number allocation
system is based on per-fiscal-year calculations and does not contemplate
that unused visa numbers will rollover to the next fiscal year. See USCIS
Ombudsman Annual Report (Dkt. # 15-2) at 33 (“[W]hen employment-based visas
are not used during the year they are authorized, they are lost and are not
available for future use without special legislation.”) See also 151 Cong.
Rec. S3887 (daily ed. Apr. 19, 2005) (statement of Rep. Hutchinson)
(“[Unused visa numbers] go out of existence and cannot be recaptured except
by an act of Congress.”). Thus, according to Defendants, Plaintiffs’
claims relating to the 2008 and 2009 visa numbers are moot because this
court cannot order that those numbers be recaptured.
To rebut that argument, Plaintiffs rely on Silva v. Bell, 605 F.2d 978 (7th
Cir.1979), wherein the court ordered that the government recapture and reissue
wrongfully issued visa numbers. But that case is factually distinguishable
from this case, because in Silva the governmental defendants conceded that
visa numbers had been misallocated and had been in the process of altering
its allocation policies when Congress amended the INA to impose a limitation
on the total number of immigrant visas available during a fiscal year to
natives of any one state in the Western Hemisphere. See Silva, 675 F.2d at
981. The governmental defendants thereafter designed and subsequently
restructured a program to recapture and reissue misallocated visa numbers,
and the plaintiffs challenged the methods by which the defendants allocated
those visa numbers. See Silva, 675 F.2d at 983. Thus, the question before
the Silva court was not whether recapture and reallocation was possible, but
how it should be conducted; here, the Defendants’ have not conceded any
error and have not undertaken efforts to recapture and reallocate any visa
numbers issued in prior fiscal years. As a result, Silva is not particularly
analogous to this case.Thus, Plaintiffs have failed to identify any authority that would show that the State Department can effectuate the relief requested, namely recapturing
visa numbers from previous fiscal years. As a result, the court finds that
the claims related to visa numbers from previous fiscal years are moot. See
Iddir v. I.N.S., 166 F. Supp. 2d 1250, 1258-59 (N.D. Ill. 2001) (finding a
case to be moot because the plaintiffs had fail to show that the
governmental defendants had the power to issue visas to the plaintiffs via a
particular eligibility program beyond the fiscal year in which they were
found eligible). The court does not have subject matter jurisdiction over
moot claims, and thus those claims must be dismissed. See Powell v.
McCormack, 395 U.S. 486, 496-97 (1969) (dismissing a case as moot because “
the issues presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome”).
2. The Complaint Does Not State a Non-Moot Claim for Prospective
Relief.The Plaintiffs’ claims are primarily based on allegations that the State
Department allocated visa numbers out of priority order during fiscal years
2008 and 2009. See ¶¶ 3, 36-40, 44. Plaintiffs request that, in
the event the court does not order that visa numbers from those years be
recaptured and allocation, the court order that visa numbers from fiscal
year 2010 be allocated to Plaintiffs. Defendants have, however, submitted
evidence that the EB-3 visa numbers reached their annual limits in fiscal
year 2010 (see Notice (Dkt. # 32), Ex. 1), which suggests that there may be
no unused visa numbers from 2010 to recapture.
But regardless of whether there are currently any unused visa numbers that
could be recaptured and reallocated during this fiscal year, the Plaintiffs
’ allegations nonetheless focus on alleged violations that occurred during
fiscal year 2008 and 2009. While it is understandable that the complaint is
limited to those years, because those were the years immediately following
the Plaintiffs’ applications for adjustment of status, the court cannot
provide any relief for alleged violations in years past, because those
claims are now moot (as explained in the previous section). Prospective
relief is not possible because the court will not disturb the State
Department’s process by which it allocates visa numbers, particularly given
that the Plaintiffs have clarified that they do not challenge that process.
See Pltfs.’ Opp’n (Dkt. # 30) at 4:3-4. Because the Plaintiffs’ claim
for prospective relief is grounded only on past alleged violations (see
Pltfs.’ Opp’n at 4:5-7), which cannot be undone, the Plaintiffs have not
presented a live controversy to the court and thus the court lacks subject
matter jurisdiction.
IV. CONCLUSION
For the reasons stated above, the court GRANTS the Defendants’ motion (Dkt.
#23).
Dated this 15th day of March, 2011.
The Honorable Richard A. Jones
United States District Judge