LLC v. Joseph R Biden, et al., Respondents. (2024)

ORDER

Before the Court is Respondents’ Motion to Dismiss (Doc. 18) and Petitioner's “Emergency Motion for Hearing and Request for Interim Relief” (Doc. 31), which the Court construes as a Motion for Temporary Restraining Order (“TRO”).

I. Background

Petitioner Next League Executive Board LLC (“Petitioner”) is a self-described “premier transformational coaching institution for helping individuals enhance their professional and personal competence, and achieve world class professional excellence.” (Doc. 17 at ¶ 37). The organization specifically helps foreign national “professionals achieve their American Dream by applying for the EB-1A Green Card.” (Id.)

Petitioner commenced this action on March 26, 2024, by filing a Petition for Writ of Mandamus (Doc. 1). The Petition has been amended twice. The Third Amended Petition (“TAP”) alleges that Respondents President Joseph Biden, Secretary of Homeland Security Alejandrop Mayorkas, and United States Citizenship and Immigration Services (“USCIS”) Director Ur M. Jaddou (collectively, “Respondents”) violated the Administrative Procedures Act (“APA”), the Immigration and Nationality Act (“INA”), and the Fifth Amendment's Due Process and Equal Protection Clauses (Doc. 17) in their administration of the EB-1A visa category popularly known as the “Einstein Visa” or the “Genius Visa” (“EB-1A”). (Doc. 17 at ¶ 17).¹ As a result of “protracted waiting periods, during which [visa applicants’] talents may be underutilized or lost to competitor nations,” Petitioner says it “has suffered a tangible impairment to its core mission of facilitating the admission of individuals with extraordinary ability into the United States.” (Id. ¶¶ 15, 31). Petitioner asks the Court to order Respondents to adjudicate the EB-1A category of visa applicants “without regard to the 7 percent quota” that immigration regulations currently impose on EB-1A applicants. (Id. at ¶ 190). In sum, the TAP alleges claims for (1) violation of the APA; (2) for a Writ of Mandamus; (3) violation of the INA;² (4) declaratory judgment under 28 U.S.C. § 2201; and (5) violation of the Due Process Clause and Equal Protection Clause of the Fifth Amendment. (Doc. 17 at ¶¶ 201–14).

On August 15, 2024, Respondents moved to dismiss Petitioner's TAP under Federal Rules 12(b)(1) and 12(b)(6). (Doc. 18). Petitioner did not respond. The Court ordered Petitioner to show cause as to why its noncompliance should not be deemed a consent to the granting of Respondents’ Motion to Dismiss under Local Rule 7.2(i). (Doc. 22). Petitioner responded, explaining that its non-compliance was due to its counsel's unexpected “travel abroad to care for his critically ill mother” and need to provide support for his sister, who underwent emergency surgery on September 18, 2024. (Doc. 23 at 1–2). Petitioner simultaneously requested an extension of time to October 18, 2024, to file a response to the Motion to Dismiss, which was unopposed by Respondents. (Doc. 24). The Court granted the request. (Doc. 25).

On October 15 and 16, 2024, without seeking leave of the Court for a needed page extension, Petitioner filed two seemingly duplicative 44-page Responses to the Motion to Dismiss. (See Docs. 27 & 28). On October 21, 2024, Respondents filed a stipulated request to extend its time to reply so it could adequately address Petitioner's lengthy Response. (Doc. 29). Noting the excessive length, the Court instead struck Petitioner's unauthorized Responses, and ordered Petitioner to “file a response to Respondents’ Motion to Dismiss that does not exceed 17 pages on or before October 28, 2024.” (Doc. 29). Petitioner again failed to respond. The Court again issued an Order to Show cause why Petitioner's failure to respond should not be deemed consent to granting Respondents’ Motion to Dismiss. (Doc. 30). The Court ordered Petitioner to respond by November 15, 2024. (Id.)

Petitioner ignored the Court's Order to Show Cause, and the time to show cause lapsed. On November 22nd, Petitioner filed an “Emergency Motion for Hearing and Request for Interim Relief.” (Doc. 31). Therein, Petitioner seeks an emergency hearing and asks the Court to advance parole for one of its customers, Dr. Rachna Chowdhary (“Dr. Chowdhary”); and to expedite the adjustment of status applications for Dr. Chowdhary—to “protect her son's derivative status”—, and another customer, Ms. Shriya Das (“Ms. Das”)—“to preserve her ability to contribute to U.S. public health.” (Id. at 9). Petitioner also asks the Court to “allow Dr. Chowdhary and Ms. Das to provide testimony” via personal depositions to “substantiate the urgency and significant of the harm.” (Id. at 4, 9). Finally, as it did in its TAP, Petitioner asks the Court to “suspend the enforcement of per-country quota for EB-1A adjudications” and “[c]ompel USCIS to prioritize EB-1A petitions consistent with congressional intent.” (Id. at 9).

As noted, when a party fails to respond to a motion, this District's Local Rules allow a court to deem the non-responsiveness as consent to the relief sought and summarily grant the motion. See LRCiv 7.2(i) (stating that a party's failure to “file the required answering memoranda ․ may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily”). Summary dismissal of the TAP is warranted here. However, the Court has also reviewed Respondent's Motion to Dismiss and it finds the jurisdictional arguments therein meritorious, as discussed below. (See Doc. 18). Because the Motion to Dismiss will be granted, Petitioner's Motion for TRO (Doc. 31) is moot.

II. Discussion

In their Motion to Dismiss, Respondents argue that this matter should be dismissed because (1) Petitioner lacks standing to bring the claims, (2) its claims are not justiciable because Plaintiff has not alleged a violation of the law or a failure to perform a nondiscretionary act or duty, and (3) it has failed to state a claim upon which relief can be granted. (Doc. 18 at 2). The Court finds all three grounds to be meritorious.

A. Standing

To satisfy the case or controversy requirement of Article III, a petitioner must establish standing to bring their claim for relief. Summers v. Earth Island Inst., 555 U.S. 488, 491 (2009). An organizational petitioner has standing to sue if its members would have standing to sue in their own right, the “interests at stake are germane to the organization's purposes,” and the members’ participation is not necessary to the claim or the relief requested. Friends of the Earth, Inc. v. Laidlaw Envtl. Srvcs., Inc., 528 U.S. 167, 181 (2000). To establish standing, Petitioner has the burden of clearly demonstrating that it has: “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of [Respondent], and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). The party invoking federal jurisdiction bears the burden of establishing these elements. Lujan, 504 U.S. at 561.

Petitioner attempts to meet its standing requirements by asserting that it can “demonstrate concrete and particularized injuries that are actual, imminent, and directly traceable to the challenged per-country quota system.” (Doc. 17 at ¶ 30). It also argues that its injuries are redressable by the relief which it seeks. (Id.) Petitioner has failed to demonstrate that it has standing to pursue its claim because it has not demonstrated the elements of traceability or redressability.

1. Traceability

It is doubtful that Petitioner has standing because, as Respondents point out, the injury it seeks to remedy cannot be attributed to the Respondents—all of whom are members of the Executive Branch. USCIS, an executive agency, must administer the immigrant visa allocation process under the statutory limitations imposed by Congress. 8 U.S.C. § 1152(a)(2). Petitioner argues that it has “enabled numerous individuals to meet the rigorous EB-1A criteria, only to find their progress stymied by the arbitrary quota system.” (Doc. 17 at ¶ 31). It also argues that this “systemic barrier” has “directly frustrated [its] organizational objectives and required a diversion of resources to assist clients in navigating the quota-induced delays.” (Id.) But any injury caused by quota-associated delays is not an injury traceable to Respondents, who are merely implementing the statutory scheme created by the Legislative Branch. See Spokeo, Inc., 578 U.S. at 338.

Furthermore, “only” State Department consular officers “have the power to issue visas.” Patel v. Reno, 134 F.3d 929, 933 (9th Cir. 1997) (citing 8 U.S.C. §§ 1101(a)(9), (16); 1201(a)). To the extent Petitioner's claimed injury is in the delayed processing of visa applications, this injury is traceable to the State Department's consular officials and not to the named Respondents. Cf. Raduga USA Corp. v. U.S. Dep't of State, 440 F. Supp. 2d 1140, 1145 (S.D. Cal. 2005) (“Plaintiffs’ injury here is directly traceable to the consular's nondiscretionary duty to make a final decision on Plaintiffs’ visa applications”); see also Luo v. Coultice, 178 F.Supp.2d 1135, 1140–41 (C.D. Cal. 2001) (“[M]andamus is an inappropriate remedy with regard to non-consular officials, whose duties [are] discretionary.”) (internal citations and quotation marks omitted).

2. Redressability

Even if Petitioner's claimed injury could be attributable to one or more of the Respondents, it is unlikely that their claims would be redressable in this Court through a favorable decision. On an interim basis, Petitioner asks the Court to “[p]rovide Parole to EB[-]1A Approved Recipients, currently based out of the country to enter and provide immediate EAD (Employment Authorization Document) thereof. And provide immediate EAD (Employment Authorization Document) to all EB[-]1A Approved Petitioners residing inside the U.S. with parole to remain.” (Doc. 17 at 64). It also asks that the Court “[i]ssue a Writ of Mandamus ordering Respondent to process adjudicate EB-1A visa application without regard to the per-country quota system; and provide immediate EAD (Employment Authorization Document) and Form I-551, LPR (Lawful Permanent Residence) Cards viz. Green Cards on an urgent basis.” (Id. 64–66).

To establish redressability, a petitioner is required to demonstrate that “it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, 528 U.S. at 181. This burden is “relatively modest.” M.S. v. Brown, 902 F.3d 1076, 1083 (9th Cir. 2018) (internal quotation marks and citation omitted). A petitioner “need not demonstrate that there is a ‘guarantee’ that [their] injuries will be redressed by a favorable decision.” Id. Instead, a “ ‘substantial likelihood’ that the relief sought would redress the injury” will suffice. Id.

A petitioner cannot establish redressability if “a favorable judicial decision would not require the [respondent] to redress [the] claimed injury ․ unless [he or] she adduces facts to show that the defendant or a third party are nonetheless likely to provide redress as a result of the decision.” Id. (citations omitted). Similarly, if the federal court lacks the authority to issue relief that would redress a plaintiff's claimed injury, there is no redressability. See id. (citations omitted); Juliana v. United States, 947 F.3d 1159, 1170 (9th Cir. 2020) (“To establish Article III redressability, the plaintiffs must show that the relief they seek is both (1) substantially likely to redress their injuries; and (2) within the district court's power to award.”) (citation omitted) (emphasis added)).

Petitioner has failed to demonstrate that its injuries are likely to be redressed by a favorable judicial decision for several reasons.

First, these requests raise serious separation of powers concerns. The Supreme Court has “long recognized” issues concerning immigration policy as “more appropriate to either the Legislature or the Executive than to the Judiciary.” Mathews v. Diaz, 426 U.S. 67, 81 (1976). Decisions regarding the admission and exclusion of foreign nationals are a “fundamental sovereign attribute exercised by the Government's political departments.” Trump v. Hawaii, 585 U.S. 667, 702 (2018) (citations omitted). Courts have “long recognized that ‘ordinarily, a consular official's decision to deny a visa to a foreigner is not subject to judicial review’ ․ based on ‘the recognition that the power to exclude or expel aliens, as a matter affecting international relations and national security, is vested in the Executive and Legislative branches of government.’ ” Allen v. Milas, 896 F.3d 1094, 1104 (9th Cir. 2018) (citations omitted). Indeed, Congress is “vested with the principal power to control the nation's borders. This power follows naturally from its powers ‘[t]o establish an uniform rule of Naturalization,’ U.S. Const. art. I, § 8, cl. 4, to ‘regulate Commerce with foreign Nations,’ id. art. I, § 8, cl. 3, and to ‘declare War,’ id. art. I, § 8, cl. 11.” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 774 (9th Cir. 2018). The Supreme Court has “repeatedly emphasized that ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” Id. (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)). Congress shares its related power to admit or exclude aliens with the Executive. Id.

Indeed, the Supreme Court has noted that judicial review of the immigration decisions of the political branches should occur “only with the greatest caution” where the court's action may “inhibit [their] flexibility ․ to respond to changing world conditions.” Mathews v. Diaz, 426 U.S. 67, 81 (1976). Thus, “ ‘it is not the judicial [branch's] role ․ to probe and test the justifications’ of immigration policies.” Hawaii, 585 U.S. at 704 (quoting Fiallo v. Bell, 430 U.S. 787, 799 (1977)).

The relief Petitioner seeks must come from action by the executive and legislative branches, rather than the judiciary. See generally See Babaria v. Blinken, 87 F.4th 963, 980 (9th Cir. 2023), cert. denied., 2024 WL 4426634 (Oct. 7, 2024) (“The long immigrant visa queue imposes significant hardship, and plaintiffs are understandably frustrated. But in this instance, relief must come from action by the executive and legislative branches rather than the judiciary.”). Petitioner seeks such extraordinary relief as “a Writ of Mandamus ordering Respondent to process adjudicate EB-1A visa application without regard to the per-country quota system” and “[a]n Executive Order or the use of presidential parole authority.” (Doc. 17 at 64–66). Plaintiff's request for a judicial order invalidating a clear congressional mandate is inappropriate and would run afoul of the doctrine of separation of powers. Diaz, 426 U.S. at 81 n.17 (“[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”) (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952)).

Petitioner's requested relief would also have them “leapfrog ahead of others in the queue, contravening [8 C.F.R. §§ 204.5(d)’s] requirement of allocating visas in the order of priority dates.” Babaria, 87 F.4th at 980; see also 8 C.F.R. §§ 204.5(d) (“The priority date of any petition filed for a classification under section 203(b) of the Act which does not require a labor certification from the Department of Labor shall be the date the completed, signed petition (including all initial evidence and the correct fee) is properly filed with USCIS.”). Petitioner essentially asks the Court to order USCIS to allow its clients (whom it has not identified) to skip the line—which the Ninth Circuit has cautioned against. See id.

Further, Petitioner has failed to show that this Court is authorized to order USCIS to adjudicate applications for adjustment of status differently than its current process. See Cheejati v. Blinken, 106 F.4th 388, 396 (5th Cir. 2024) (dismissing the plaintiff's APA claim challenging the executive's approach to distributing immigrant visas because they did not “sufficiently allege[ ] that any binding authority requires USCIS to adjudicate applications for adjustment of status differently than it is currently adjudicating them”). Petitioner does not explain how the Court can substitute its discretion for USCIS's and ignores that “judicial review of the denial of an adjustment of status application is expressly precluded by 8 U.S.C. § 1252(a)(2)(B)(i).” Ramat v. Nielsen, 317 F. Supp. 3d 1111, 1115 (S.D. Cal. 2018) (quoting Hassan v. Chertoff, 593 F.3d 785, 788-89 (9th Cir. 2010) (per curiam)); see also Nielsen, 317 F. Supp. 3d at 1115 (“where, as here, Plaintiff seeks judicial review for the USCIS's ‘abuse of discretion’ in denying his application for adjustment of status, ‘judicial review of a discretionary determination is also expressly precluded by 8 U.S.C. § 1252(a)(2)(B)(ii).’ ”) (citations omitted)). Thus, Petitioner cannot demonstrate the “final standing inquiry, redressability,” which “requires a court to determine whether it possesses the ability to remedy the harm that a petitioner asserts.” Citizens for Better Forestry v. U.S. Dep't of Agric., 341 F.3d 961, 975 (9th Cir. 2003).

Finally, as Respondents points out, Petitioner has not named any of its clients who have pending applications that have been affected by the per-country limitations. (Doc. 18 at 21). But even if it had, there is no guarantee that USCIS or the State Department would favorably exercise its discretion to approve those applications. See 8 U.S.C. § 1153(b)(1)(A) (noting that to obtain an EB-1A visa, an alien must show that he has “extraordinary ability in the sciences, arts, education, business or athletics.”). Thus, Petitioner has not demonstrated that “it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision”—so, it has not demonstrated redressability for standing purposes. Friends of the Earth, 528 U.S. at 181.

B. Justiciability

Respondents also similarly argue that Petitioner's APA and Mandamus claims are not justiciable. (Doc. 18 at 21). The Court agrees.

Petitioner's claims are not justiciable as it asks this Court to usurp the functions of the Legislative and Executive branches. While Section 706 of the APA “grants federal courts the power to ‘compel agency action unlawfully withheld or unreasonably delayed,’ ” this power is limited to “situations where an agency has ignored a specific legislative command.” Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010) (citations omitted). A claim pursuant to § 706(1) is “in essence” one for mandamus under 28 U.S.C. § 1361. Independence Mining Co., Inc. v. Babbitt, 105 F.3d 502 (9th Cir. 1997). Therefore, the agency action must be pursuant to a legal obligation “so clearly set forth that it could traditionally have been enforced through a writ of mandamus.” Hells Canyon, 593 F.3d at 932.

Here, Petitioner alleges that the per-country limitations to the EB-1A category visas imposed by Congress have caused severe backlogs and thus these visas are being “unlawfully withheld or unreasonably delayed.” (Doc. 17 at ¶¶ 193, 202). But Petitioner does not allege that these agencies have “ignored a specific legislative command.” Hells Canyon, 593 F.3d at 932. Instead, as described by Respondents, these complaints are “programmatic challenge[s] to the per-country limitations as applied to the ER-1A category.” (Doc. 18 at 22). Because Respondents have not “ignored a specific legislative command,” none of Petitioner's claims are justiciable. Hells Canyon, 593 F.3d at 932; see also Zixiang Li v. Kerry, 710 F.3d 995, 1004 (9th Cir. 2013) (stating that the judiciary “ha[s] no authority to compel agency action merely because the agency is not doing something [it] may think it should do.”).

C. Failure to State a Claim

Respondents finally argue that Petitioner has not sufficiently alleged its APA, Mandamus or Fifth Amendment claims. (Doc. 18 at 22). Respondents argue that Petitioner's declaratory judgment claim is moot since none of its other claims remain. (Id. at 25 n.6).

A motion to dismiss for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6), requires that this Court evaluate the legal sufficiency of a petitioner's claims. Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). The test requires that the petitioner present “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). These facts must “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” with “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

A complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). A complaint that provides “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor will a complaint suffice if it presents nothing more than “naked assertions” without “further factual enhancement.” Id. at 557. The Court must accept all well-pleaded factual allegations as true and interpret the facts in the light most favorable to the petitioner. Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). That rule does not apply, however, to legal conclusions. Iqbal, 556 U.S. at 678. If the court dismisses a claim for failure to state a claim, it must then determine whether to grant leave to amend. See Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010).

1. The APA

The APA generally “does not provide an independent basis for subject matter jurisdiction[.]” Tucson Airport Auth. v. Gen. Dynamics Corp., 136 F.3d 641, 645 (9th Cir. 1998). However, under 5 U.S.C. § 706(1), federal courts have jurisdiction to review a claim that agency action has been “unlawfully withheld or unreasonably delayed.” Plaskett v. Wormuth, 18 F.4th 1072, 1081 (9th Cir. 2021) (quoting 5 U.S.C. § 706(1)). Such a claim “can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004). So, “[a] court can compel agency action under this section only if there is ‘a specific, unequivocal command’ placed on the agency to take a ‘discrete agency action,’ and the agency has failed to take that action.” Vietnam Veterans of Am. v. Cent. Intelligence Agency, 811 F.3d 1068, 1075-76 (9th Cir. 2016) (citations omitted)).

Petitioner alleges that “the denial of Petitioners’ adjustment of status by an agency of the United States, i.e., Department of Homeland Security, is being ‘unlawfully withheld or unreasonably delayed.’ ” (Doc. 17 at ¶ 202). But the only named Petitioner to this action is Next League Executive Board, LLC. (Id. at 1). It is unclear from the TAP that any of Petitioner's clients have pending adjustment of status applications that are presently being impacted by the per-country limitations. Rather, it appears that their clients are waiting for their priority dates to become current so they can apply for adjustment of status or for an immigrant visa at a consular post. (See id. at ¶ 147). Neither USCIS nor the State Department is required to accept for processing or approve an I-485 application or issue an immigrant visa when a visa number is not available to the applicant. See 8 U.S.C. § 1255(a)–(b) (noting that a visa number must be available both at the time the applicant files the I-485 application or applies for an immigrant visa at a consulate abroad, and at the time of approval). Without more, Petitioner's allegations are little more than a formulaic recitation of the elements for an APA claim, which is not sufficient to state a claim under Rule 12(b)(6). See Twombly, 550 U.S. at 555.

2. The Mandamus Act

A district court has original jurisdiction “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Such relief “is available ․ only if: (1) the individual's claim is clear and certain; (2) the official's duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and (3) no other adequate remedy is available.” Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1997). The Mandamus Act “is intended to provide a remedy only if the plaintiff has exhausted all other avenues of relief and only if the defendant owes him a nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 603–04 (1984).

Petitioner alleges that “Respondents have a duty to administer and enforce” the INA and thus “have the responsibility to remove the 7 percent quota as applied to the EB1A category.” (Doc. 17 ¶ 205). Petitioner says it has “no remedy available to compel the Respondents to satisfy their statutory obligations but for this federal action.” (Id.)

Indeed, “petitioners whose applications for adjustment in status are properly before the INS ․ have a right, enforceable through a writ of mandamus, to have the applications processed within a reasonable time.” Singh v. Still, 470 F. Supp. 2d 1064, 1067 (N.D. Cal. 2007) (citations omitted). However, in cases where courts have addressed “the specific issue of whether there has been unreasonable delay in processing an immigration status application, courts have typically ‘look[ed] to the source of the delay—e.g., the complexity of the investigation as well as the extent to which the defendant participated in delaying the proceeding.’ ” Id. (citing Saleh v. Ridge, 367 F. Supp. 2d 508, 512 (S.D.N.Y. 2005)). Petitioner offers no information or evidence that Respondents have caused the alleged delay. Instead, it baldly asserts that Respondents have a “responsibility to remove the 7 percent quota as applied to the EB[-]1A category” because “the failure to address the EB-1A backlog will result in a significant opportunity cost, as talented individuals are deterred from bringing their skills and contributions to the United States.” (Doc. 17 at ¶¶ 23, 205). This policy argument does not demonstrate that Respondents owe Petitioner a nondiscretionary duty. See Heckler, 466 U.S. at 603–04. Petitioner's claim, as alleged, is little more than a threadbare recital of the elements of a mandamus claim supported by mere conclusory statements. Iqbal, 556 U.S. at 678. Thus, the Court will also dismiss Petitioner's Mandamus Act claim for failure to state a claim.

3. The Fifth Amendment

Petitioner alleges that Respondents’ “practices, policies, conduct, and/or failures to act [ ] violate the Petitioner's right to substantive and procedural due process and equal protection of law protected by the Fifth Amendment.” (Doc. 17 at ¶ 213). It also argues that “[b]ecause of the Respondent's delay in granting the petitions, Petitioners have suffered a violation of their due process rights.” (Id.)

Notably, while “the words ‘equal protection’ do not appear in the Fifth Amendment's text, the Fifth Amendment's Due Process Clause includes an equal protection component and ‘[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.’ ” United States v. Machic-Xiap, 552 F. Supp. 3d 1055, 1062 (D. Or. 2021) (quoting Buckley v. Valeo, 424 U.S. 1, 93 (1976)).

i. The Due Process Clause

The Due Process Clause of the Fifth Amendment states that “No person shall be ․ deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. “The base requirement of the Due Process Clause is that a person deprived of property be given an opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 984 (9th Cir. 1998) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Petitioner invokes both procedural and substantive due process, so, the Court will address these two subsets of due process in turn.

a. Procedural Due Process

“Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Procedural due process (“PDP”) claims have two elements: “(1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998).

Again, Petitioner alleges that Respondents have failed address the EB-1A backlog and that this failure will result in a significant opportunity cost, as talented individuals are deterred from bringing their skills and contributions to the United States. (Doc. 17 at ¶ 23). However, Respondent's ability to process EB-1A visas is constrained by the seven percent quota imposed by Congress. 8 U.S.C. § 1152(a)(2). USCIS also represents that “the demand for visas within EB1 at the worldwide level has exceeded the typical annual limit for the entire category (28.6 percent of 140,000, or 40,040) for many years” and that “[e]ven if Congress were to amend the statute to exempt EB1 from the per-country limits, noncitizens from all countries would still have to wait for visa availability.” (Doc. 18-1 at ¶ 17).

The Court is sympathetic to the fact that the long line to obtain a visa imposes significant hardship. But its role is to decide whether Petitioner has plausibly alleged a PDP claim. The answer to that question is no, because Petitioner has not alleged that it has suffered a “denial of adequate procedural protections.” Brewster, 149 F.3d at 982. Instead, it takes issue with 8 U.S.C. § 1152(a)(2) working as Congress has intended it to. (Doc. 17 at ¶ 15 (“The quota system does not merely regulate the flow of immigrants; it actively hinders the United States’ ability to attract and retain the best and brightest minds, particularly from countries with a high demand for U.S. immigration, such as India and China.”)). Because Plaintiff has failed to state a plausible PDP claim, the Court must dismiss it. See Twombly, 550 U.S. at 570.

b. Substantive Due Process

Next, substantive due process (“SDP”) affords “heightened protection against government interference with certain fundamental rights.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997). “The protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.” Albright v. Oliver, 510 U.S. 266, 272 (1994). When a fundamental right is not implicated, government action need only have a rational relationship to a legitimate state interest to survive a substantive due process challenge, i.e., it is subject only to rational basis review. See Witt v. Dep't of the Air Force, 527 F.3d 806, 817 (9th Cir. 2008) (“Substantive due process cases typically apply strict scrutiny in the case of a fundamental right and rational basis review in all other cases.”).

Under rational basis review, “legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). “Governmental action is rationally related to a legitimate goal unless the action is clearly arbitrary and unreasonable, having no substantial relation to public health, safety, morals, or general welfare.” Sylvia Landfield Tr. v. City of Los Angeles, 729 F.3d 1189, 1193 (9th Cir. 2013) (internal citation and quotation marks omitted). The party bringing a substantive due process claim “shoulder[s] a heavy burden” of showing that the government “could have had no legitimate reason for its decision.” Halverson v. Skagit Cnty., 42 F.3d 1257, 1262 (9th Cir. 1994) (internal quotation marks and citation omitted).

Foreign nationals do not have a fundamental right to enter the United States. See Kleindienst v. Mandel, 408 U.S. 753, 762 (1972) (“an unadmitted and nonresident alien [has] no constitutional right of entry to this country as a nonimmigrant or otherwise.”). Accordingly, the seven percent quota imposed by Congress is subject to rational basis review. Witt, 527 F.3d at 817. Under this standard, Petitioner's SDP claim fails because it cannot plausibly plead that Congress had “no legitimate reason” for imposing the seven percent quota in 8 U.S.C. § 1152(a)(2). Indeed, Petitioner itself alleges that there is a legitimate interest behind the seven percent quota: to “ensure a diverse immigrant population.” (Doc. 17 at ¶ 76). In other words, Petitioner has failed to allege that the seven percent per-country quota fails under a rational basis review, so, the Court must dismiss this claim. City of Cleburne, 473 U.S. at 440; see also S. Fork Livestock P'ship v. United States, 183 F. Supp. 3d 1111, 1120 (D. Nev. 2016) (concluding, in the context of a motion to dismiss, that “because there is no deprivation of a constitutionally protected fundamental right, [the plaintiff] cannot maintain a substantive due process claim against the Federal Defendants as a matter of law.”).

ii. The Equal Protection Clause

In assessing an equal protection challenge, the Court must “measure the basic validity of [a] legislative classification.” United States v. Carrillo-Lopez, 68 F.4th 1133, 1139 (9th Cir. 2023), cert. denied, 144 S. Ct. 703 (2024) (quoting Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 272 (1979)). When a statute makes an express classification based on race, it “is presumptively invalid and can be upheld only upon an extraordinary justification.” Id. (quoting Shaw v. Reno, 509 U.S. 630, 643–44 (1993)). This is sometimes referred to as a “facial” challenge to a statute. A statute that is “facially neutral may also violate equal protection principles, but only if a discriminatory purpose was a motivating factor for the legislation.” Carrillo-Lopez, 68 F.4th at 1139 (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977)). This is sometimes referred to as an “as-applied” challenge.

Petitioner does not clearly state whether this is a facial or as applied equal protection challenge, but it argues that “[t]he application of a per-country quota to EB-1A visas raises equal protection concerns if it results in unjustifiable discrimination based on nationality.” (Doc. 17 at ¶ 110). The Court construes petitioner's equal protection claim as an “as applied” challenge.

Petitioner notes that the seven percent per-country quota at issue in this case, “[w]hile designed to ensure diversity in immigrant populations,” can lead to “significant disparities in wait times for individuals from countries with high levels of immigration to the U.S., notably India and China” and that this quota resembles “the kind of classification that could trigger strict scrutiny if applied within a different context, like race or national origin in domestic equal protection cases.” (Id. at ¶ 123) (emphasis added). By Petitioner's own argument, its equal protection claim fails.

As stated above, an as-applied challenge can prevail “only if a discriminatory purpose was a motivating factor for the legislation.” Carrillo-Lopez, 68 F.4th at 1139. Petitioner alleges in its Petition that the seven-percent quota was “designed to ensure diversity in immigrant populations.” (Doc. 17 at ¶¶ 76, 123). Thus, because Petitioner does not, and cannot, allege that a discriminatory purpose was a motivating factor for the seven percent per-country quota, Petitioner cannot maintain its equal protection claim. Carrillo-Lopez, 68 F.4th at 1139.

III. Conclusion

In sum, Petitioner does not have standing to pursue any of its claims because these claims are not traceable to Respondents. See supra Section II.A.1. It has also failed to demonstrate that its “injuries” are redressable by this Court. See supra Section II.A.2. Petitioner's APA and Mandamus claims are not justiciable either. See supra Section II.B. Even if Petitioner had demonstrated standing or justiciability, it has failed to plausibly state its APA, Mandamus or Fifth Amendment claims. See supra Section II.C. Since none of Petitioner's other claims remain, its Declaratory Judgment claim also fails since the Declaratory Judgment Act does not provide for an independent cause of action. See Cnty. of Santa Clara v. Trump, 267 F. Supp. 3d 1201, 1215–16 (N.D. Cal. 2017) (“the Declaratory Judgment Act creates a remedy for litigants but is not an independent cause of action.”).

Accordingly,

IT IS ORDERED that Respondent's Motion to Dismiss Petitioner's Third Amended Complaint in its entirety (Doc. 18) is GRANTED. The Clerk of Court is kindly directed to enter judgment dismissing this matter and close this case.

IT IS FURTHER ORDERED that Petitioner's Emergency Motion for Hearing and Request for Interim Relief (Doc. 31) is DENIED as moot.

Dated this 4th day of December, 2024.

FOOTNOTES

1.   Pursuant to 8 U.S.C. § 1153(b)(1)(A), an alien may apply for a visa based on “extraordinary ability” if the alien “seeks to enter the United States to continue work in the area of extraordinary ability” and “the alien's entry into the United States will substantially benefit prospectively the United States.” To obtain such a visa, which is referred to as a “EB-1A visa,” an alien must show that he has “extraordinary ability in the sciences, arts, education, business or athletics.” Id.; see also 8 C.F.R. § 204.5(h)(1). “Extraordinary ability means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.” 8 C.F.R. § 204.5(h)(2). A visa number must be available both at the time the applicant files the I-485 application or applies for an immigrant visa at a consulate abroad, and at the time of approval. See 8 U.S.C. § 1255(a), (b); 8 C.F.R. §§ 245.1(g), 245.2(a)(2)(i)(A)-(C). A petition for an alien of extraordinary ability “must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.” 8 C.F.R. § 204.5(h)(3). An alien may meet this evidentiary burden in one of two ways: (1) by evidence of “a one-time achievement (that is, a major, international recognized award)”; or (2) evidence of at least three of [the] achievements listed in section 204.5(h)(3). Id. If a petitioner has submitted the requisite evidence, USCIS determines whether the evidence demonstrates both (1) a “level of expertise indicating that the individual is one of that small percentage who have risen to the very top of [their] field of endeavor,” 8 C.F.R. § 204.5(h)(2), and (2) “that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.” 8 C.F.R. § 204.5(h)(3).

2.   As a threshold matter, Petitioner's violation of the INA claim fails because it does not name a customer who was denied an adjustment of status by USCIS—much less a customer who was improperly denied one. (Doc. 17 at ¶ 209). Even if the Petitioner included a named petitioner besides itself who was denied an adjustment, such a claim would be beyond this Court's review. Ramat v. Nielsen, 317 F. Supp. 3d 1111, 1115 (S.D. Cal. 2018) (“judicial review of the denial of an adjustment of status application is expressly precluded by 8 U.S.C. § 1252(a)(2)(B)(i).” (quoting Hassan v. Chertoff, 593 F.3d 785, 788-89 (9th Cir. 2010) (per curiam) (emphasis added). So, this claim must be dismissed.

Honorable Diane J. Humetewa United States District Judge