PAZ v. MAYORKAS (2025)

ORDER GRANTING DEFENDANT ALEJANDRO MAYORKAS'S MOTION TO DISMISS

Before the Court is Defendant Alejandro Mayorkas's (“Mayorkas”) Motion to Dismiss. [Dkt. 24]. Defendant Mayorkas has been sued in his official capacity as Secretary of the United States Department of Homeland Security (“DHS”). Defendant Mayorkas filed the pending motion in this Court on April 29, 2024.¹ Id. After the Court granted an extension [Dkt. 26], Plaintiffs Maria de los Angeles Paz (“Paz”) and Paul Petit (“Petit”), individually and on behalf of all persons similarly situated ² (collectively, “Plaintiffs”), filed their Response on May 20, 2024. [Dkt. 27]. After the Court granted an extension [Dkt. 29], Defendant Mayorkas submitted his Reply on June 4, 2024. [Dkt. 30]. Plaintiffs subsequently filed a Sur-reply within the time allotted. See E.D. Tex. Loc. Civ. R. 7(f) (“A sur-reply responding to issues raised in the reply may be served and filed within seven days from the date the reply is served.”). On July 31, 2024, Defendant Mayorkas filed a Notice of Supplemental Authority (“Supplement”). [Dkt. 32]. The Court considered the Supplement and it informed the opinion below. Defendant's motion is now ripe for review.

For the reasons stated below, the Court GRANTS Defendant's motion.

I. BACKGROUND

a. Statutory and Regulatory Background

This is an immigration and naturalization services case. See generally [Dkt. 22]. The process through which non-citizens obtain visas to enter and permanently reside in the United States is governed by the Immigration and Nationality Act (“INA”). 8 U.S.C. §§ 1101–1537. The INA is administered by United States Citizenship and Immigration Services (“USCIS”), a division of DHS. [Dkt. 22 at ¶ 6]; see also USCIS Policy Manual, Vol. 1, Part A, Ch.1, Section A.

The INA provides that costs associated with immigration and naturalization are paid for by fees collected from immigration and naturalization applications. See 8 U.S.C. § 1356(m), (n). Specifically, the INA provides that

[F]ees 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.

8 U.S.C. § 1356(m) (emphasis added). § 1356(n) directs that the fee revenues collected under § 1356(m) and deposited into the Immigration Examinations Fee Account (in the Treasury of the United States) are to be used to fund the “expenses in providing immigration adjudication and naturalization services.” § 1356(j) authorizes the Secretary of DHS (“Secretary”) to “prescribe such rules and regulations as may be necessary to carry out” the abovementioned provisions, among others.

In 1997, Congress included language permitting immigration agencies to “collect and retain a fee for fingerprinting services” for applicants over the age of fourteen in the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998. See Pub. L. No. 105-119, 111 Stat. 2440. Regulations to this effect were later promulgated. See 8 C.F.R. § 103.2(a)(1), (b)(9) (1999). Currently, regulations provide that “USCIS may require any applicant ․ filing a benefit request ․ to appear for an interview and/or biometric collection” and that “USCIS may require the payment of the biometric services fee in 8 C.F.R. § 106.2 or that the individual obtain a fee waiver.” 8 C.F.R. § 103.2(b)(9); see also id. § 103.16(a) (stating that “[a]n individual may be required to submit biometric information by law, regulation, Federal Register notice or the form instructions applicable to the request type or if required in accordance with 8 C.F.R. § 103.2(b)(9)” and that “DHS may use this [ ] information to conduct background and security checks, adjudicate immigration and naturalization benefits, and perform other functions related to administering and enforcing the immigration and naturalization laws.”). The biometric services fee is—and has always been—“generally [ ] non-refundable” and due when an application is submitted. Compare 8 C.F.R. § 103.2(a)(1), with id. § 103.2(a)(1) (1999).

USCIS changed its biometric collection procedures and reformulated the biometric services fee in 2007. See generally Adjustment of the Immigration and Naturalization Benefit Application and Petition Fee Schedule, 72 Fed. Reg. 29851-01 (May 30, 2007). Two changes are relevant to this matter. First, in response to comments about applicants having to provide biometric data more than once, USCIS stated that applicants would “not be required to provide biometric data multiple times for a single application” and that development of the Biometrics Storage System would “allow the re-use of fingerprints.” See id. at 29857. Second, USCIS clarified that “the biometric fee is not simply a fee for biometric collection or the USCIS cost of the applicant or petitioner appearing at an Application Support Center.” Id. Rather, “[t]he biometric fee also covers costs associated with the use of the collected biometrics for FBI and other background checks,” meaning that “an applicant will pay the biometric fee whenever he or she files another application that requires the collection, updating, or use of biometrics for background checks.” Id. These changes were crystallized in 8 C.F.R. § 103.7(b)(1) (2007). And they are also reflected in more recent regulations. USCIS may charge a fee to collect biometric information to provide biometric collection services, to conduct required national security and criminal history background checks, to verify an individual's identity, and to store and maintain this biometric information for reuse to support other benefit requests. See 8 C.F.R. § 103.17 (2016); see also 8 C.F.R. § 103.17 (2020); see also 8 C.F.R. § 103.17 (2024).

b. Plaintiffs’ Immigration Applications and the Proposed Class Action

Ms. Paz is a citizen of Mexico and a lawful permanent resident of the United States living in Henderson, Texas. [Dkt. 22 at ¶ 4]. When Ms. Paz submitted her Application for Permanent Residence (Form I-485) in 2021, she, as required, also submitted an $85.00 biometric services fee. Id. at ¶ 10. Subsequently, Ms. Paz was informed by USCIS that it could utilize her biometric information from a prior application and that “it [was] not necessary for [her] to appear at a USCIS Application Support Center (ASC) for a biometrics appointment.” [Dkt. 4 at 3]. USCIS also informed Ms. Paz that the $85.00 biometric services fee would not be refunded.³ Id. Ms. Paz received this information on June 1, 2021. Id.

Mr. Petit is a citizen of the United States living in Pollok, Texas. [Dkt. 22 at ¶ 5]. Like Ms. Paz, when Mr. Petit submitted his Application for Naturalization (Form N-400) in 2022, he paid the $85.00 biometric services fee as required. Id. at ¶ 13. USCIS later informed Mr. Petit that it could use his biometrics from a previous application and that “it [was] not necessary for him to appear at a USCIS Application Support Center (ASC) for a biometrics appointment.” [Dkt. 4 at 5]. USCIS also informed Mr. Petit that the biometric services fee would not be refunded. Id. Mr. Petit received this information on October 31, 2022. Id.

On May 17, 2023, Plaintiffs sued Defendant Mayorkas in his official capacity as Secretary on behalf of themselves and all similarly situated individuals. See generally [Dkt. 1]. Plaintiffs invoke the Administrative Procedures Act (APA) (5 U.S.C. §§ 702 ⁴ and 706 ⁵ ) and allege that Defendant wrongfully retained Plaintiffs’ and the prospective class members’ biometric services fees. [Dkt. 22 at ¶ 32]. Plaintiffs allege that the retention of the biometric fees constitutes “final agency action” under the APA. Id. at ¶ 19; see also 5 U.S.C. § 704. Plaintiffs further allege that these retentions are arbitrary, capricious, and not in accordance with law because they are (i) “not reasonable nor reasonably explained,” (ii) “not based on consideration of the relevant factors in determining whether to return biometrics fees and [amount to] a clear error of judgment,” (iii) not based on an examination of “the relevant data, specifically the costs involved when biometrics do not need to be taken[,]” and (iv) inconsistent with 8 U.S.C. § 1356(m).⁶ [Dkt. 22 at ¶¶ 23–28]; see also 5 U.S.C. § 706(2)(A). Among other relief, Plaintiffs request “a declaratory judgment declaring Defendant's practice of unjustly retaining biometrics fees to be arbitrary, capricious, not in accordance with law[,]” and a return “to Plaintiffs and the class members the biometrics fees improperly retained.” [Dkt. 22 at 10].

II. LEGAL STANDARDS

a. Dismissal under Rule 12(b)(1)

“ ‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’ ” Xitronix Corp. v. KLA-Tencor Corp., 916 F.3d 429, 435 (5th Cir. 2019) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). Without subject matter jurisdiction, federal courts have no authority to act. Lower Colo. River Auth. v. Papalote Creek II, L.L.C., 858 F.3d 916, 927 (5th Cir. 2017).

Although “ ‘[c]ourts have an independent obligation to determine whether subject-matter jurisdiction exists,’ ․ parties may challenge the constitutional or statutory subject matter jurisdiction of a federal court under Federal Rule of Civil Procedure 12(b)(1).” Est. of Goudreau through Godreau v. Est. of Godreau through Holland, 534 F. Supp. 3d 713, 716–17 (E.D. Tex. 2021) (alteration in original) (citation omitted) (quoting Hertz Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010)). After a defendant files a Rule 12(b)(1) motion, “the party asserting jurisdiction bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Id. at 717 (cleaned up) (quoting In re S. Recycling, L.L.C., 982 F.3d 374, 379 (5th Cir. 2020); then quoting Morris v. Thompson, 852 F.3d 416, 419 (5th Cir. 2017)). “Yet that is no high bar: ‘It is extremely difficult to dismiss a claim for lack of subject matter jurisdiction.’ ” Id. (quoting Outlaw Lab'y, LP v. Shenoor Enter., Inc., 371 F. Supp. 3d 355, 360 (N.D. Tex. 2019)).

In determining whether there is jurisdiction, courts may look to “any of the following: ‘(1) the complaint alone; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.’ ” Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008) (quoting Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)). Courts “accept as true all well-pleaded allegations set forth in the complaint and construe those allegations in the light most favorable to the plaintiff.” Earl v. Boeing Co., 611 F. Supp. 3d 345, 350 (E.D. Tex. 2020) (citing Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994)). If a court finds that it lacks subject matter jurisdiction, it must dismiss the case without prejudice. Est. of Goudreau, 534 F. Supp. 3d at 717 (citing Mitchell v. Bailey, 982 F.3d 937, 944 (5th Cir. 2020)); Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam).

Notably, “[w]hen a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming, 281 F.3d at 161 (emphasis added). Doing so “prevents a court without jurisdiction from prematurely dismissing a case with prejudice.” Id.

III. DISCUSSION

a. Dismissal under Rule 12(b)(1)

i. Time-bar Under 28 U.S.C. § 2401(a)

28 U.S.C. § 2401 controls “Time for commencing an action against United States.” “[E]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” Id. § 2401(a) (emphasis added). Section 2401(a) is a jurisdictional condition attached to the United States’ waiver of sovereign immunity and must be strictly construed. See Gen. Land Office v. Dep't of the Interior, 947 F.3d 309, 318 (5th Cir. 2020); see also Ades v. United States, 2022 WL 1198206, at *1 (5th Cir. Apr. 22, 2022).

Defendant Mayorkas originally argued that Section 2401(a)’s six-year clock began to run when the 2016 Fee Rule ⁷ became final (on October 24, 2016) and expired in 2022, before the Complaint was filed. [Dkt. 24 at 12]. However, Defendant Mayorkas's Supplement withdraws this argument in light of a recent Supreme Court case. See Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799, 144 S.Ct. 2440, 219 L.Ed.2d 1139 (2024). In Corner Post, the Supreme Court held that “[a]n APA plaintiff does not have a complete and present cause of action until she suffers an injury from final agency action, so the statute of limitations does not begin to run until she is injured.” Id. at 809, 144 S.Ct. 2440 (emphasis added). Defendant Mayorkas concedes that since Ms. Paz's alleged injury occurred in 2021, Mr. Petit's occurred in 2022, and the Complaint was filed in 2023, the Complaint is timely under 28 U.S.C. § 2401(a). [Dkt. 32 at 2]. Accordingly, Plaintiffs’ suit is not time-barred under Section 2401(a). The Court will proceed into the remaining, more complicated part of the 12(b)(1) inquiry.

ii. Jurisdiction-stripping Under 8 U.S.C. § 1252

Section 702 of the APA entitles “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action” to seek judicial relief. 5 U.S.C. § 702. However, section 701 limits the scope of judicial review when “statutes preclude judicial review” or “agency action is committed to agency discretion by law.” Id. §§ 701(a)(1), (2). One such limitation is provided in 8 U.S.C. § 1252(a)(2)(B)(ii).

Defendant Mayorkas argues that the Court lacks subject matter jurisdiction in this case because 8 U.S.C. § 1252(a)(2)(B)(ii) strips the Court of jurisdiction to review various actions involving the exercise of discretion under the INA, including establishing the biometric fee and the decision to make them non-refundable (even if an individual does not have to visit an ASC). [Dkt. 24 at 15]. The Court agrees.

1. 8 U.S.C. § 1252(a)(2)(B)

Section 1252(a)(2)(B) describes the circumstances where federal courts are stripped of jurisdiction to review discretionary decisions of the Secretary and USCIS. It reads as follows:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review—

(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or

(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a)8 of this title.

8 U.S.C. § 1252 (a)(2)(B) (emphasis added). “[U]nder this subchapter” in § 1252 (a)(2)(B)(ii) refers to “Subchapter II. Immigration,” which lies within Title 8 of the United States Code. See 8 U.S.C. §§ 1151–1382.

Defendant Mayorkas argues that 8 U.S.C. § 1356 is the discretion-conferring provision “under this subchapter.” [Dkt. 24 at 16]. He points to the discretionary language woven into § 1356(m):

[F]ees 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 be set at a level that will recover any additional costs associated with the administration of the fees collected.

See 8 U.S.C. § 1356(m) (emphasis added). Defendant also spotlights § 1356(j), which grants the Attorney General ⁹ the authority to “prescribe such rules and regulations as may be necessary to carry out the provisions of [Section 1356].” In sum, Defendant argues that, in promulgating the relevant biometric fee regulations, he was channeling the discretion provided by § 1356 to set and collect fees—thus, § 1252(a)(2)(B)(ii) applies and deprives this Court of jurisdiction.

To the Court's knowledge, the application of § 1252(a)(2)(B)(ii) to a regulation promulgated under § 1356(m) is an issue of first impression. But there is a Supreme Court case that serves as a useful guidepost.

2. Kucana v. Holder

In Kucana v. Holder, 558 U.S. 233, 237, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010), the Supreme Court broached the issue of whether § 1252(a)(2)(B) “applies not only to Attorney General determinations made discretionary by statute, but also determinations declared discretionary by the Attorney General himself through regulation.” Id. (emphasis added). After considering the presumption of judicial review of agency action, the text, and the history of the statute, the Court concluded that § 1252(a)(2)(B)’s jurisdiction-stripping only applied to determinations made discretionary by statute.¹⁰ Id. The case centered on motions to reopen removal proceedings. Id. at 242, 130 S.Ct. 827. The Supreme Court noted that while the Attorney General's regulation clearly granted discretion regarding motions to reopen, there was no statutory grant of discretion:

All agree that the Attorney General's regulation, 8 CFR § 1003.2(a), places “[t]he decision to grant or deny a motion to reopen ․ within the discretion of the Board [of Immigration Appeals].” But the statute does not codify that prescription, and does not otherwise “specif[y]” that reopening decisions are “in the discretion of the Attorney General.”

Id. at 242–43, 130 S.Ct. 827 (emphasis added) (footnotes omitted).

The Supreme Court discerned the meaning of § 1252(a)(2)(B)(ii) by reading it alongside its vertical neighbor, § 1252(a)(2)(B)(i). This analysis is significant for the present case:

Focusing on § 1252(a)(2)(B), we note the lead line serving to introduce both of the subparagraph's two clauses: “[N]o court shall have jurisdiction to review ․” Clause (i) then places within the no-judicial-review category “any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255.” Each of the statutory provisions referenced in clause (i) addresses a different form of discretionary relief from removal, see supra, at 832, n. 2, and each contains language indicating that the decision is entrusted to the Attorney General's discretion. See, e.g., § 1182(h) (“The Attorney General may, in his discretion, waive [inadmissibility based on certain criminal offenses].”) ․

To the clause (i) enumeration of administrative judgments that are insulated from judicial review, Congress added in clause (ii) a catchall provision covering “any other decision ․ the authority for which is specified under this subchapter.” The proximity of clauses (i) and (ii), and the words linking them—“any other decision”—suggests that Congress had in mind decisions of the same genre, i.e., those made discretionary by legislation. The clause (i) enumeration, we find, is instructive in determining the meaning of the clause (ii) catchall.

Id. at 246–47, 130 S.Ct. 827 (emphasis added) (footnotes omitted). The Supreme Court re-emphasized that § 1252(a)(2)(B)(i) is the instruction manual on how to read § 1252(a)(2)(B)(ii):

We also find significant the character of the decisions Congress enumerated in § 1252(a)(2)(B)(i), thereby insulating them from judicial review. As the Government explained at oral argument, the determinations there listed are “substantive decisions ․ made by the Executive in the immigration context as a matter of grace, things that involve whether aliens can stay in the country or not.” Tr. of Oral Arg. 14. They include waivers of inadmissibility based on certain criminal offenses, § 1182(h), or based on fraud or misrepresentation, § 1182(i); cancellation of removal, § 1229b; permission for voluntary departure, § 1229c; and adjustment of status, § 1255.

Other decisions specified by statute “to be in the discretion of the Attorney General,” and therefore shielded from court oversight by § 1252(a)(2)(B)(ii), are of a like kind. See, e.g., § 1157(c)(1) (discretion to admit refugees “determined to be of special humanitarian concern to the United States”); § 1181(b) (discretion to waive requirement of documentation for readmission); § 1182(a)(3)(D)(iii) (discretion to waive, in certain cases, inadmissibility of aliens who have affiliated with a totalitarian party).

Id. at 247–48, 130 S.Ct. 827 (emphasis added) (footnote omitted). To repeat, although the catchall language in § 1252(a)(2)(B)(ii) is broad (“any other decision or action of the Attorney General or the Secretary of Homeland Security”), these discretionary decisions or actions must be of like kind to the decisions expressly enumerated in § 1252(a)(2)(B)(i). See id. The Court explores the language in these enumerated provisions below.

8 U.S.C. § 1182(h) addresses waivers of inadmissibility based on a particular criminal offense. The provision contains strong discretionary language: “The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if--[certain conditions are met].” Id. (emphasis added). Two of the conditions must be “established to the satisfaction of the Attorney General.” Id. §§ 1182(h)(1)(A), (B). Additionally, “the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, [must] consent[ ] to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status.” Id. § 1182(h)(2) (emphasis added). § 1182(h) ends with language that removes all shadow of a doubt about insulation from judicial review: “No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection.” Id. § 1182(h).

8 U.S.C. § 1182(i) addresses waivers of inadmissibility based on fraud or willful misrepresentations of material fact. It provides that

The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien or, in the case of a VAWA self-petitioner, the alien demonstrates extreme hardship to the alien or the alien's United States citizen, lawful permanent resident, or qualified alien parent or child.

Id. § 1182(j)(1) (emphasis added). § 1182(j) ends with the same, unequivocal language about judicial review: “No court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver under paragraph (1).” Id. § 1182(j)(2).

8 U.S.C. § 1229b addresses cancellation of removal. Discretion is sprawled across this section. Perhaps the clearest example is found in § 1229b(b)(2)(D). When evaluating applications submitted by battered spouses and children, the Attorney General must consider “any credible evidence relevant to the application,” but “[t]he determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General.” Id. (emphasis added). The word “may” is frequently used to describe the powers of the Attorney General or the Secretary. See id. §§ 1229b(a), (b)(1), (b)(2)(A), (b)(6)(A), (b)(6)(B)(i), (b)(6)(B)(iii), (b)(6)(C)(i).

8 U.S.C. § 1229c addresses permission for voluntary departures. One subsection, entitled “Three-year pilot program waiver,” provides that “[d]uring the period October 1, 2000, through September 30, 2003, and subject to subparagraphs (C) and (D)(ii), the Attorney General may, in the discretion of the Attorney General for humanitarian purposes, waive application of subparagraph (A) in the case of [specific aliens].” Id. § 1229c(a)(2)(B) (emphasis added). The word “may” is repeated in other subsections in reference to the Attorney General. See id. §§ 1229c(a)(1), (a)(3), (b)(1), (e). § 1229c(e) is noteworthy: “The Attorney General may by regulation limit eligibility for voluntary departure under this section for any class or classes of aliens. No court may review any regulation issued under this subsection.” Id. (emphasis added); see also id. § 1229c(f) (“No court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure under subsection (b)[.]”).

Finally, 8 U.S.C. § 1255 addresses adjustment of status. Subsection (a) provides that

The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if [certain conditions are met].

Id. § 1255(a) (emphasis added). Subsection (j) states that it is “in the sole discretion of the Attorney General” to adjust the status of an alien based on the provision of information that helped deter acts of terrorism. Id. § 1255(j)(2). Subsection (l) contains similar language regarding the Secretary and victims of trafficking. Id. § 1255(l)(2). The word “may” is used countless times in reference to the powers of the Attorney General and the Secretary. See generally § 1255.

All in all, this detour confirms the Supreme Court's conclusion in Kucana that the provisions enumerated in § 1252(a)(2)(B)(i) are (1) saturated with discretionary language and (2) united by a common thread: they all concern executive decisions involving various forms of relief that may be granted in the immigration context as a matter of grace. See 558 U.S. at 247–48, 130 S.Ct. 827.

3. Applying Kucana

Based on the instructions from Kucana, the key reference-points from § 1252(a)(2)(B)(i), and relevant cases, it appears that § 1252(a)(2)(B)(ii) strips the Court of jurisdiction in this case. In other words, § 1356(m) falls within the sweep of § 1252(a)(2)(B)(ii).

At the outset, there are some notable distinctions between the present case and Kucana. In Kucana, a discretion-conferring regulation was present, but a discretion-conferring statute was absent. See 558 U.S. at 242–43, 130 S.Ct. 827. Here, there is a statute that confers discretion regarding the setting of biometric fees: § 1356(m). § 1356(m) uses the word “may” twice, and this word is understood to have a discretionary import. See id.; see also May, Black's Law Dictionary (12th ed. 2024) (defining “may” as “[t]o be permitted to.”); see also Kucana, 558 U.S. at 247 n.13, 130 S.Ct. 827 (citing Zadvydas v. Davis, 533 U.S. 678, 697, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001)); see also Halo Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 93, 103, 136 S.Ct. 1923, 195 L.Ed.2d 278 (2016) (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 136, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005)). Another provision—which applies to subsection (m) and all other subsections in § 1356—similarly uses the word “may” with respect to the Secretary's authority to promulgate regulations. See § 1356(j) (emphasis added) (“The [Secretary] may prescribe such rules and regulation as may be necessary to carry out the provisions of this section.”).

Granted, § 1356(m) lacks the strong language seen in some of the statutes referenced in § 1252(a)(2)(B)(i). For instance, phrases such as “in the sole discretion,” “within the sole discretion,” and “in his discretion” are absent. See, e.g., § 1255(j)(2) (using “in the sole discretion”); see also § 1229b(b)(2)(D) (using “within the sole discretion”); see also § 1182(h) (using “in his discretion”). Additionally, § 1356(m) contains no express language barring judicial review. See, e.g., § 1229c(e) (emphasis added) (stating that “[t]he Attorney General may by regulation limit eligibility for voluntary departure under this section [and] [n]o court may review any regulation issued under this subsection.”).

However, § 1356(m) lacks any discernable, statutory standards that would cabin discretion. See Perez Perez v. Wolf, 943 F.3d 853, 866 (9th Cir. 2019) (citation omitted) (analyzing three statutes that Kucana stated § 1252(a)(2)(B)(ii) would apply to ¹¹ and noting that “none provide[ ] the Attorney General with statutory standards that constrain that action or decision”); see also Bouarfa v. Mayorkas, 604 U.S. 6, 145 S.Ct. 24, 30, ––– L.Ed.2d –––– (2024) (analyzing 8 U.S.C. § 1155 and noting the absence of “conditions that the Secretary must satisfy before he can revoke the agency's approval”). Moreover, § 1252(a)(2)(B)(ii) does not require the underlying statute to contain any magic incantations. See Flores v. Garland, 72 F.4th 85, 90 (5th Cir. 2023) (citing Ghanem v. Upchurch, 481 F.3d 222, 224–25 (5th Cir. 2007)) (rejecting the argument that “§ 1252(a)(2)(B)(ii) requires a statute to include the magic word ‘discretion’ for the statute to specify that a decision or action is ‘in the discretion of the Attorney General or the [Secretary].’ ”); see also id. at 91 (emphasis added) (quoting Poursina v. USCIS, 936 F.3d 868, 873 (9th Cir. 2019)) (stating that “ ‘variations among the [§ 1252(a)(2)(B)(i)] provisions demonstrate that Congress used a wide range of language to commit decisions to the government's discretion[.]’ ”). The lack discernable, statutory standards nudges § 1356(m) closer to § 1252(a)(2)(B)(ii).

The language within § 1356(m) is certainly discretionary. See Kucana, 558 U.S. at 246–47, 130 S.Ct. 827 (“ ‘any other decision’ ․ suggests that Congress had in mind decisions of the same genre, i.e., those made discretionary by legislation.”). However, as mentioned above, § 1252(a)(2)(B)(ii) must be read in tandem with its vertical neighbor. And, at least at first glance, the provisions enumerated in § 1252(a)(2)(B)(i) appear to differ from § 1365(m) at a categorical level.¹² The Court returns once again to Kucana:

We also find significant the character of the decisions Congress enumerated in § 1252(a)(2)(B)(i), thereby insulating them from judicial review. As the Government explained at oral argument, the determinations there listed are “substantive decisions ․ made by the Executive in the immigration context as a matter of grace, things that involve whether aliens can stay in the country or not.” Tr. of Oral Arg. 14. They include waivers of inadmissibility based on certain criminal offenses, § 1182(h), or based on fraud or misrepresentation, § 1182(i); cancellation of removal, § 1229b; permission for voluntary departure, § 1229c; and adjustment of status, § 1255.

Other decisions specified by statute “to be in the discretion of the Attorney General,” and therefore shielded from court oversight by § 1252(a)(2)(B)(ii), are of a like kind. See, e.g., § 1157(c)(1) (discretion to admit refugees “determined to be of special humanitarian concern to the United States”); § 1181(b) (discretion to waive requirement of documentation for readmission); § 1182(a)(3)(D)(iii) (discretion to waive, in certain cases, inadmissibility of aliens who have affiliated with a totalitarian party).

Id. at 247–48, 130 S.Ct. 827 (emphasis added). One could argue that, while the § 1252(a)(2)(B)(i) statutes address “discretionary relief from removal,” id. at 246, 130 S.Ct. 827, § 1356(m) addresses an entirely separate matter: the setting of fees for adjudication and naturalization services. One could further argue that this categorical distinction pushes § 1365(m) outside the scope of § 1252(a)(2)(B)(ii)’s “any other” language. See Kucana, 558 U.S. at 247 n.14, 130 S.Ct. 827 (rejecting the argument that “any” in § 1252(a)(2)(B)(ii) “should be read expansively” and emphasizing the constraining effect of the word “other”); see also id. at 248, 130 S.Ct. 827 (stating that “[t]he clause (i) enumeration ․ is instructive in determining the meaning of the clause (ii) catchall.”); see also Patel v. Garland, 596 U.S. 328, 332, 142 S.Ct. 1614, 212 L.Ed.2d 685 (2022) (emphasis added) (mentioning that “Congress has sharply circumscribed judicial review of the discretionary-relief process” before citing § 1252(a)(2)(B)(i)). However, the Court does not believe a categorical distinction stands in the way of § 1356(m) and § 1252(a)(2)(B)(ii).

To prove its point, the Court will zoom out and analyze how § 1356 is situated in the broader statutory context. § 1356 is entitled “Disposition of moneys collected under the provisions of this subchapter.” See id. (emphasis added). “[T]his subchapter” refers to the very same “subchapter” of Title 8 referenced in § 1252(a)(2)(B)(ii): “Subchapter II. Immigration.” See 8 U.S.C. §§ 1151–1382. As such, it makes perfect sense why § 1356, at first glance, exceeds the limited realm of “discretionary relief from removal”; § 1356 is a general provision that covers the entire subchapter. Since all the provisions contained in § 1252(a)(2)(B)(i) are part of the subchapter, and § 1356 applies to the entire subchapter, § 1356 is, therefore, inherently related to “discretionary relief from removal.” This is illustrated by a cross-reference within § 1255—one of the statutes enumerated in § 1252(a)(2)(B)(i):

The portion of each application fee [for adjustment in status of an alien physically present in the United States] (not to exceed $200) that the Attorney General determines is required to process an application under this section and is remitted to the Attorney General pursuant to paragraphs (1) and (2) of this subsection shall be disposed of by the Attorney General as provided in subsections (m), (n), and (o) of section 1356 of this title.

See 8 U.S.C. § 1255(i)(3)(A) (emphasis added). As such, the Court concludes that there is a sufficient relationship between § 1252(a)(2)(B)(i)’s statutes and § 1356(m) to make the latter “of a like kind” with the former. See Kucana, 558 U.S. at 248, 130 S.Ct. 827.

Plaintiffs argue that there shouldn't be jurisdiction-stripping in this case. Plaintiffs state that they are not challenging Defendant's authority to set fees, nor that such authority is discretionary or non-reviewable. [Dkt. 27 at 7]. Instead, they are challenging “Defendant's failure to return to them all or part of their biometrics fees once it is determined that taking biometrics is not necessary.” Id. (emphasis added). Plaintiffs appear to be arguing that Defendant's failure to return to them all or part of their biometrics fees is distinct from the Defendant's authority under § 1356(m) to set fees for adjudication and naturalization services. The Court doesn't buy what Plaintiffs are trying to sell.

First, such a fine distinction does not comport with the statute's language. § 1356(m) states 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.” Id. (emphasis added). It provides further that “[s]uch fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected.” Id. (emphasis added). Surely the power to “set” fees includes the power to establish an $85 fee for specific services. See Set, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/set (last visited Jan. 30, 2025) (defining “set” as meaning “to fix or decide on as a time, limit, or regulation” and also “to fix a certain amount”). Similarly, the word “set,” as used in § 1356(m), contemplates making certain fees non-refundable. See id. (defining “set” as “to fix firmly[,] make immobile[, or] give rigid form or condition to”); see also Cheejati v. Blinken, 106 F.4th 388, 394 (5th Cir. 2024) (emphasis added) (citation omitted) (stating that “ ‘any’ operates to augment the purview of § 1252(a)(2)(B)(ii) to preclude judicial review of DOS's and USCIS's retrogression hold policies, which are practical applications of the discretion afforded the Attorney General in § 1255(a).”), cert. denied, No. 24-401, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2025 WL 247456 (U.S. Jan. 21, 2025).

Second, similarly styled arguments have been raised and rejected by other courts in this circuit. See Min Zhu v. Holder, No. 3:09-CV-0882-N, 2010 WL 11626787 (N.D. Tex. Mar. 24, 2010) (Godbey, J.). The relevant statute in Min Zhu was 8 U.S.C. § 1255(a). Id. at *2. The statute provided that the Attorney general may, “in his discretion and under such regulations as he may prescribe,” adjust an alien's status to legal permanent resident. Id. The court determined that this language clearly deprived it of jurisdiction “to review the substantive grant or denial of an immigrant's I-485 application for adjustment of status.” Id. The plaintiff tried to dodge this discretionary language: “Zhu's challenge is not to the ultimate adjudication of her application, but rather, to USCIS's decision not to adjudicate it until a visa becomes available.” Id. (emphasis added). But this distinction ultimately did not make a difference:

Congress expressly provided that the adjudication of I-485 applications falls within the discretion of the Attorney General. Section 1255(a) indicates that an alien's status “may be adjusted by the Attorney General in his discretion and under such regulations as he may prescribe ․” (emphasis added). The agency promulgated 8 C.F.R. § 245.2(a)(5)(ii)—a mechanical implementation of section 1255(a)(3)—pursuant to the discretionary authority provided in the statute. Thus, USCIS's election to wait to process Zhu's visa application until it can adjudicate it favorably constitutes a “decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland ․” 8 U.S.C. § 1252(a)(2)(B)(ii).

Id. at *5; see also D'Cruz v. United States Citizenship & Immigr. Servs., No. CV H-24-340, 2024 WL 4523307, at *1, *3–4 (S.D. Tex. Oct. 9, 2024) (rejecting the same argument). Like the Min Zhu and D'Cruz courts, the Court finds the Plaintiffs’ distinction unpersuasive.

Next, the Plaintiffs try to prevent jurisdiction-stripping by making this a Kucana case: “the policy against refunding immigration fees is made discretionary only by regulation.” [Dkt. 27 at 8 (emphasis added)]. But this case is unlike Kucana. There is certainly discretionary language within the regulations USCIS promulgated pursuant to § 1365(m). See 8 C.F.R. § 103.16(a) (emphasis added) (stating that DHS “may collect and store [biometric information] for present or future use[.]”); see also id. § 103.2(b)(9) (stating that USCIS “may” require an applicant to appear for biometric collection and “may require the payment of the biometric services fee in 8 C.F.R. 106.2[.]”); see also id. § 103.2(a)(1) (emphasis added) (stating that “[f]iling fees generally are non-refundable regardless of the outcome of the benefit request ․ and any decision to refund a fee is at the discretion of USCIS.”). However, Kucana held that there must be statutory, discretion-conferring language for § 1252(a)(2)(B)(ii) to apply; it did not hold that there could not be regulatory, discrectionary language in addition to that statutory language. See Kucana, 558 U.S. at 243, 130 S.Ct. 827 (emphasis added) (noting that “[t]he Board's discretionary authority to act on a motion to reopen ․ is “specified” not in a statute, but only in the Attorney General's regulation[.]”). The Court is unconvinced that discretionary regulations growing out of a discretionary statute change the nature of said statute for purposes of § 1252(a)(2)(B)(ii). See Thigulla v. Jaddou, 94 F.4th 770, 776 (8th Cir. 2024) (citations omitted) (internal quotation marks omitted) (“If the statute specifies that the decision is wholly discretionary, regulations or agency practice will not make the decision reviewable.”).

The Court closes its § 1252(a)(2)(B)(ii) analysis on the following note. In Kucana, the Supreme Court “dispelled” “[a]ny lingering doubt about the proper interpretation of 8 U.S.C. § 1252(a)(2)(B)(ii)” by referring to the “well-settled” jurisprudence counselling that “[w]hen a statute is ‘reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review.’ ” 558 U.S. at 251, 130 S.Ct. 827 (quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995)). The Supreme Court noted that it has “consistently applied that interpretive guide to legislation regarding immigration, and particularly to questions concerning the preservation of federal-court jurisdiction.” Id. (collecting cases). The Fifth Circuit has similarly spoken on the breadth of judicial review under the APA, calling upon Supreme Court precedent stating that the Act “embodies the basic presumption of judicial review” and that such review “will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.” Collins v. Mnuchin, 938 F.3d 553, 573–74 (5th Cir. 2019) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). But the Court finds this presumption inapplicable in the present case. Based on the analysis above, § 1356(m) falls within the scope of § 1252(a)(2)(B)(ii) and that fact not subject to “divergent interpretation.” See Kucana, 558 U.S. at 251, 130 S.Ct. 827. § 1356(m) is clearly a discretion-conferring provision. For this reason, the Court concludes that § 1252(a)(2)(B)(ii) strips it of jurisdiction to hear this case. See Soc'y of Divine Word v. United States Citizenship & Immigr. Servs., No. 21 CV 3650, 2022 WL 17820973, at *6 (N.D. Ill. Dec. 20, 2022) (holding that § 1252(a)(2)(B)(ii) stripped the court of jurisdiction over USCIS's exercise of discretion under § 1356(u)(2)(E), a sister provision involving “[p]remium fee[s] for certain immigration benefit types”).

The Court also finds that Plaintiffs cannot rely on the Mandamus Act, the APA, or the Declaratory Judgment Act as independent sources of jurisdiction in this case. [Dkt. 22 at ¶¶ 2, 32]. § 1252(a)(2)(B)(ii) strips this Court of jurisdiction “[n]otwithstanding any other provision of law (statutory or nonstatutory)[.]” See id. (emphasis added); see also Min Zhu, 2010 WL 11626787, at *6. Accordingly, Defendant Mayorkas is entitled to a dismissal under Rule 12(b)(1).

b. Dismissal under Rule 12(b)(6)

The Court is confident in its conclusion that it lacks jurisdiction to hear this case. However, as mentioned above, the application of § 1252(a)(2)(B)(ii) to § 1356(m) is an issue of first impression. Even if the Court is somehow wrong on the jurisdictional question, a dismissal would likely be justified under Rule 12(b)(6).

There is an on-point case from the Northern District of California that bolsters this conclusion. See Bautista-Perez v. Holder, 745 F. Supp. 2d 948 (N.D. Cal. 2010). In Bautista-Perez, the court did not address the application of § 1252(a)(2)(B)(ii) and proceeded to the merits. See generally id. The plaintiffs brought a nearly identical APA challenge against USCIS: “Plaintiffs contend that, in setting the biometric services fee, USCIS relied on impermissible factors and failed to consider the problem that TPS applicants would pay for services they were not receiving.” Id. at 960 (emphasis added). The court was unpersuaded:

USCIS acted well within its authority under section 549 and 8 U.S.C. § 1356(m) in setting the biometric services fee at $80 and charging those whose biometrics were already on file. Plaintiffs’ arguments for setting aside that fee as arbitrary and capricious have no merit. Plaintiffs claim that USCIS relied on “factors Congress did not intend it to consider,” as section 549 allows a fee to be charged only “for services actually provided.” Opp'n at 22. However, the Court has already refuted this argument: the fee is charged for the performance of background checks, which are a service provided to TPS applicants. Plaintiffs also argue that charging applicants for services they do not receive is “an important aspect of the problem” that USCIS “entirely failed to consider.” [Motor Vehicle Mfrs. Ass'n of U.S., Inc. v.] State Farm [Mut. Auto. Ins. Co.], 463 U.S. [29] at 43, 103 S.Ct. 2856[, 77 L.Ed.2d 443 (1983)]. To the contrary, USCIS acted within its congressional mandate to ensure recovery of the full costs of services, including services provided to non-fee-paying asylum applicants. 8 U.S.C. § 1356(m). USCIS followed that mandate by setting a single fee to be paid by anyone who receives biometric services. Plaintiffs have therefore alleged no facts that would support a finding that the agency action was arbitrary and capricious.

Id. (emphasis added).¹³ The holding from Bautista-Perez, combined with Plaintiffs’ conclusory allegations on their APA claim, indicate that a dismissal under Rule 12(b)(6) would probably be justified, even if this Court had subject matter jurisdiction. See Ashcroft v. Iqbal, 556 U.S. 662, 681, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also [Dkt. 22 at ¶¶ 23–29].¹⁴

IV. CONCLUSION

For the foregoing reasons, it is ORDERED that Defendant Alejandro Mayorkas's Motion to Dismiss under Rule 12(b)(1) [Dkt. 24 at 14–18] is hereby GRANTED WITHOUT PREJUDICE.

FOOTNOTES

1.   This is Defendant Mayorkas's second motion to dismiss; the first was filed on August 23, 2023. [Dkt. 7]. This motion was denied in part and granted in part on March 19, 2024. [Dkt. 21]. Specifically, the Court denied Defendant's request for a dismissal based on lack of subject matter jurisdiction and granted his request based on failure to state a claim upon which relief can be granted. Id. at 12. The Court gave Plaintiffs fourteen days from the date of the Order to file their First Amended Complaint, which they did on April 1, 2024. Id. at 13; see [Dkt. 22].

2.   Plaintiffs seek class certification under Rule 23(b)(2) of the Federal Rules of Civil Procedure. [Dkt. 22 at ¶¶ 7–8].

3.   Paragraph 12 of the operative Complaint addresses this point, citing to “Exhibit 2.” [Dkt. 22 at ¶ 12]. However, there are no exhibits to the operative Complaint; only the Plaintiffs’ original Complaint has exhibits. See [Dkt. 4]. The Court will consider the exhibits that the operative Complaint incorporates by reference. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (emphasis added) (citing Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir. 1985)) (“An amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading.”); see also Rolan v. LaSalle Sw. Corr., No. 3:20-CV-2842-B-BN, 2021 WL 5568168, at *6 (N.D. Tex. Nov. 1, 2021), report and recommendation adopted, No. 3:20-CV-2842-B-BN, 2021 WL 5566769 (N.D. Tex. Nov. 29, 2021) (collecting cases).The Court also notes a discrepancy. Whereas paragraph 12 alleges that “USCIS advised Plaintiff Paz that the biometrics fee was unnecessary,” “Exhibit 2” does not indicate that USCIS said the fee was unnecessary; it indicates that Ms. Paz's appearance at a USCIS ASC was unnecessary. See [Dkt. 4 at 3]. A similar mischaracterization is made for Mr. Petit with “Exhibit 4.” Compare [Dkt. 22 at ¶ 14], with [Dkt. 4 at 5]. The Court will not accept allegations that are clearly contradicted by the incorporated attachments. See Stevenson v. Toce, 113 F.4th 494, 502–03 (5th Cir. 2024) (citing Sligh v. City of Conroe, 87 F.4th 290, 298 (5th Cir. 2023)).

4.   “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” See 5 U.S.C. § 702.

5.   “The reviewing court shall--․ hold unlawful and set aside agency action, findings, and conclusions found to be--arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A).

6.   Plaintiffs specifically allege the following: “The Policy is arbitrary and capricious, and not in accordance with 8 U.S.C. § 1356(m), because the actual cost of providing biometric services, as of April 1, 2024, is $30.00. See U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 89 F. R. 6194, 6204 (January 31, 2024).” [Dkt. 22 at ¶ 28].

7.   Defendant Mayorkas did not explicitly tether “2016 Fee Rule” to any regulations in his motion to dismiss. See generally [Dkt. 24]. However, the Court understands “2016 Fee Rule” to refer to the following cluster of regulations. See 8 C.F.R. §§ 103.16(a), 103.17, 103.2(a)(1); see generally U.S. Citizenship and Immigration Services Fee Schedule, 81 FR 73292-01 (Oct. 24, 2016).

8.   The exception for relief under § 1158(a) refers to administrative decisions about whether to grant asylum.

9.   Admittedly, § 1365(j) references the “Attorney General,” not the Secretary. However, this is a minor anachronism. Regulatory authority (for purposes of § 1365) transferred from the Attorney General to the Secretary in 2003 with the formation of DHS (which subsumed the functions of the Immigration and Naturalization Service). See Homeland Security Act of 2002, Pub. L. No. 107–296, 116 Stat. 2135 (2002).

10.   The Fifth Circuit arrived at a similar conclusion before Kucana was decided. See Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005).

11.   For context, those three statutes are 8 U.S.C. §§ 1157(c)(1), 1181(b), and 1182(a)(3)(D)(iii).

12.   Plaintiffs did not raise this argument.

13.   Separate from their APA claim, the plaintiffs also raised sophisticated statutory arguments: “[The plaintiffs] contend, in short, that USCIS violate[d] [8 U.S.C. § 1254b] by charging for services that are [1] not provided, [2] not biometric services, [3] not necessary, and [4] not related to TPS.” Id. at 955 (internal quotation marks omitted). But even these did not carry the day. See id. at 955–57.

14.   In light of the 12(b)(1) and 12(b)(6) analysis, the Court will not address Plaintiffs’ request for class certification under Rule 23(b)(2).

Michael J. Truncale, United States District Judge