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Herrera v. Holder

United States District Court, Third Circuit

November 12, 2013

ERIC H. HOLDER, JR., et al., Defendants.


SUSAN D. WIGENTON, District Judge.

Before the Court is Defendants Eric H. Holder, Jr., Janet Napolitano, the United States Citizenship and Immigration Services ("USCIS"), Alejandro Mayorkas, and John Thompson's (collectively, "Defendants") Motion to Dismiss the Complaint filed by Plaintiffs Rafael Enrique Herrera ("Herrera") and Maria Claribel Perez Gonzalez ("Gonzalez") (collectively, "Plaintiffs") pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Venue is proper under 28 U.S.C. § 1391(e). This Court, having considered the parties' submissions, decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, the USCIS' Motion to Dismiss is GRANTED.


Herrera is a 60-year-old native and citizen of the Dominican Republic, who has resided in the United States for more than fourteen years. (Compl. ¶ 10.) Gonzalez is a 40-year-old citizen of the United States. ( Id. ¶ 11.) Plaintiffs were married on June 10, 2005 in Union City, New Jersey, the municipality wherein they currently reside. ( Id. ¶¶ 11-12.)

On or about December 26, 2005, Gonzalez filed an I-130 Relative Visa Petition on Herrera's behalf. ( Id. ¶ 13.) According to Plaintiffs, the USCIS interviewing officer approved the I-130 visa petition on that same day. ( Id. ¶ 14.) On April 30, 2009, however, the USCIS issued a Notice of Intent to Revoke ("NOIR") the approved I-130 petition. ( Id. ¶ 17.) The NOIR explained that the petition was being revoked because Herrera's previous spouse, Carmen Josafina Garcia Herrera ("Mrs. Herrera"), filed a prior I-130 visa petition on his behalf on April 4, 1995. ( Id. ) Although initially approved on April 4, 1995, the USCIS ultimately denied Mrs. Herrera's I-130 petition on July 19, 2006. ( Id. ) According to the NOIR, the denial was due to a consular investigation by the U.S. Embassy in the Dominican Republic, which determined that Herrera married Mrs. Herrera solely to assist Herrera in obtaining permanent resident status. ( Id. ) This conclusion was grounded in Herrera's admission that he had married Mrs. Herrera "solely for the purpose of entering the United States." ( Id. ) The NOIR further indicated these findings were based upon Herrera's admission that he never actually met Mrs. Herrera's family and based on interviews with Herrera's neighbors in which they reported that Herrera still lived with Maria Guaba ("Guaba"), his first wife and the mother of his children. ( Id. )


On July 23, 2009, the USCIS formally revoked Gonzalez's I-130 petition relying on the consular investigation referenced in the NOIR. (Compl. ¶ 18.) Following Plaintiffs' appeal, the Board of Immigration Appeals ("BIA") upheld the USCIS' revocation on May 6, 2010. ( Id. ¶ 19.) Plaintiffs filed another I-130 visa petition on Herrera's behalf on June 30, 2010. ( Id. ¶ 20.) On or about June 28, 2011, the USCIS issued to Plaintiffs a Notice of Intent to Deny the new petition. ( Id. ¶ 21.) The USCIS issued an official denial of Plaintiffs' petition on October 20, 2011. ( Id. ¶ 21.) Plaintiffs appealed, and the BIA issued a decision affirming the USCIS' denial on January 8, 2013. ( Id. ¶¶ 22-23.)

On January 31, 2013, Plaintiffs filed the instant Complaint in this Court, alleging violations of the Fifth Amendment, the Administrative Procedure Act, 5 U.S.C. § 701 et seq., the Mandamus Act, 28 U.S.C. § 1361, the Declaratory Judgment Act, 28 U.S.C. § 2201, and the Equal Access to Justice Act, 5 U.S.C. § 504 and 28 U.S.C. § 2412. ( Id. ¶¶ 25-36.) On April 22, 2013, the Defendants filed the instant Motion to Dismiss.


The adequacy of pleadings is governed by Federal Rule of Civil Procedure 8(a)(2), which requires that complaints allege "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This Rule "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.... Factual allegations must be enough to raise a right to relief above the speculative level." Twombly., 550 U.S. at 555 (internal citation omitted); see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (stating that "Rule 8 requires a showing, rather than a blanket assertion, of entitlement to relief" (quoting Twombly, 550 U.S. at 555 n.3) (internal quotation marks omitted)).

In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips, 515 F.3d at 233 (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation marks omitted). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). If the "well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, " the complaint should be dismissed for failing to show "that the pleader is entitled to relief'" as required by Rule 8(a)(2). Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).

In Fowler v. UPMC Shadyside, the Third Circuit directed district courts to conduct a two-part analysis. 578 F.3d 203, 210 (2009). First, the court must separate the factual elements from the legal conclusions. See id. The court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Id. at 210-11 (citing Iqbal, 556 U.S. at 678). Second, the court must determine if "the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief.'" Id. at 211 (quoting Iqbal, 566 U.S. at 679). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to show' such an entitlement with its facts." Id. (citing Phillips, 515 F.3d at 234-35).

Of particular importance here, "[i]n reviewing the propriety of administrative proceedings... the Court may consider at the Rule 12(b)(6) stage the record of administrative actions, opinions, and decisions on which a Plaintiff bases his complaint." Kerrigan v. Chao, No. 04-1189, 2004 WL 2397396, at *1 (E.D. Pa. Oct. 26, 2004) (citing ...

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