Cabrera Cabrera v. United States Citizenship and Immigration Services

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

_________________________________________
)
MARVIN YOVANY CABRERA )
CABRERA )
)
Plaintiff, )
)
v. ) Case No. 18-cv-01602 (APM)
)
UNITED STATES CITIZENSHIP AND )
IMMIGRATION SERVICES, et al., )
)
Defendants. )
_________________________________________ )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

On January 12, 2017, Defendant U.S. Citizenship and Immigration Services (“USCIS”)

revoked Plaintiff Marvin Yovany Cabrera Cabrera’s previously approved Form I-360 visa petition

for special immigrant juvenile status. USCIS determined that Plaintiff was not eligible for special

immigrant juvenile status because he filed his Petition on the day of his 21st birthday, instead of

before his 21st birthday, as required by the agency’s regulations. Plaintiff brings this action

challenging the revocation of his I-360 Petition under the Administrative Procedure Act (“APA”),

5 U.S.C. §§ 701 et seq., and the Equal Protection and Due Process Clauses of the United States

Constitution.

Defendants move to dismiss Plaintiff’s Complaint both for lack of subject matter

jurisdiction and for failure to state a claim. As to subject matter jurisdiction, Defendants argue

that this court lacks the power to review agency decisions revoking I-360 Petitions because such

actions are discretionary and specifically excluded by statute from judicial review. As for failure
to state a claim, Defendants maintain that Plaintiff has not adduced facts that render it plausible

that the agency’s action was arbitrary and capricious. Defendants also point out that the court

lacks jurisdiction as to Plaintiff’s constitutional claims, which must be raised directly with the

D.C. Circuit.

The court grants Defendants’ Motion to Dismiss in part and denies it in part. The court

lacks jurisdiction over Plaintiff’s APA claim insofar as he alleges that the revocation of his Petition

was arbitrary and capricious because the agency unreasonably delayed in taking such action. The

court, however, has jurisdiction to review Plaintiff’s challenge to the reasonableness of USCIS’s

regulations on filing petitions seeking special immigrant juvenile status and the implementation of

those regulations. Finally, with respect to Plaintiff’s constitutional claims, the court defers to

Plaintiff as to whether those claims should be transferred now or later to the D.C. Circuit for

review.

II. BACKGROUND

A. Legal Background

Section 204(a)(l)(G) of the Immigration and Naturalization Act (“INA”) allows persons

qualifying for Special Immigrant Juvenile (“SIJ”) status to obtain a residency visa and eventually

seek lawful permanent residence. See 8 U.S.C. § 1154(a)(1)(G)(ii). Section 101(a)(27)(J) of the

INA defines an SIJ as:

(J) an immigrant who is present in the United States—

(i) who has been declared dependent on a juvenile court located in
the United States or whom such a court has legally committed to, or
placed under the custody of, an agency or department of a State, or
an individual or entity appointed by a State or juvenile court located
in the United States, and whose reunification with 1 or both of the
immigrant’s parents is not viable due to abuse, neglect,
abandonment, or a similar basis found under State law;

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 (ii) for whom it has been determined in administrative or judicial
proceedings that it would not be in the alien’s best interest to be
returned to the alien’s or parent’s previous country of nationality or
country of last habitual residence; and

(iii) in whose case the Secretary of Homeland Security consents to
the grant of special immigrant juvenile status, except that—

(I) no juvenile court has jurisdiction to determine the custody
status or placement of an alien in the custody of the Secretary
of Health and Human Services unless the Secretary of Health
and Human Services specifically consents to such
jurisdiction; and

(II) no natural parent or prior adoptive parent of any alien
provided special immigrant status under this subparagraph
shall thereafter, by virtue of such parentage, be accorded any
right, privilege, or status under this chapter;

8 U.S.C. § 1101(a)(27)(J). Essentially, the statute requires that anyone seeking SIJ status must

have first been the subject of a local juvenile court order indicating that (1) he is a dependent of

that court, (2) that reunification with one or both parents is not viable “due to abuse, neglect,

abandonment, or a similar basis,” and (3) that return to his home country is not in his best interest.

Satisfying the INA’s definition of Special Immigrant Juvenile does not, however, by itself

make one eligible for residency status. USCIS Regulations impose additional requirements. Those

Regulations provide:

An alien is eligible for classification as a special immigrant
under section 101(a)(27)(J) of the Act if the alien:

(1) Is under twenty-one years of age;

(2) Is unmarried;

(3) Has been declared dependent upon a juvenile court
located in the United States in accordance with state law
governing such declarations of dependency, while the
alien was in the United States and under the jurisdiction
of the court;

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 (4) Has been deemed eligible by the juvenile court for long-
term foster care;

(5) Continues to be dependent upon the juvenile court and
eligible for long-term foster care, such declaration,
dependency or eligibility not having been vacated,
terminated, or otherwise ended; and

(6) Has been the subject of judicial proceedings or
administrative proceedings authorized or recognized by
the juvenile court in which it has been determined that it
would not be in the alien's best interest to be returned to
the country of nationality or last habitual residence of the
beneficiary or his or her parent or parents; or

(7) On November 29, 1990, met all the eligibility
requirements for special immigrant juvenile status in
paragraphs (c)(1) through (c)(6) of this section, and for
whom a petition for classification as a special immigrant
juvenile is filed on Form I-360 before June 1, 1994.

8 C.F.R. § 204.11(c).

For purposes of this case, the key requirement is that the applicant be “under twenty-one

years of age.” 8 C.F.R. § 204.11(c)(1). As with all eligibility criteria, the applicant must meet this

age requirement “at the time of filing the benefit request.” 8 C.F.R. § 103.2(b)(1). An application

is considered “filed,” per the Regulations, on “the date it is properly filed and received by USCIS.”

8 C.F.R. § 204.1(b).

B. Factual Background

Plaintiff Cabrera Cabrera is a national of El Salvador, born December 9, 1993. Compl.,

ECF No. 1 [hereinafter Compl.], ¶ 6. Plaintiff last entered the United States on August 6, 2012.

See id. According to Plaintiff, he “attempted to schedule a Court hearing in the Circuit Court for

Prince George’s County, Maryland,” to secure the necessary juvenile-court certification for an I-

360 Petition, “but the first available date was the day before Petitioner turned 21 years of age.”

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Compl., ECF No. 1-11, Pl.’s Ex. 10 [hereinafter Pl.’s Appeal Br.], at 3.1 That date was December

8, 2014. Plaintiff attended the hearing, and on December 8, 2014, the Circuit Court of Maryland

for Prince George’s County issued an order making the requisite findings that Plaintiff was a

dependent of the court, that Plaintiff’s reunification with his father was not viable, and that it was

not in Plaintiff’s best interest to return to El Salvador. Comp. ¶ 16; Compl., Order Regarding

Minor Child’s Eligibility for Special Immigrant Juvenile Status, ECF No. 1-2. Immediately upon

receiving this order, Plaintiff’s counsel completed and sent his application for I-360 status by

overnight mail to the USCIS Dropbox in Chicago, Illinois. Pl.’s Appeal Br. at 3. USCIS does not

allow I-360 Petitions to be hand-delivered or filed electronically. Comp. ¶ 18. Plaintiff concedes

that USCIS did not receive his I-360 Petition until December 9, 2014, the very day he turned

21 years old. Comp. ¶ 19.

On December 24, 2014, USCIS sent Plaintiff a Receipt Notice acknowledging that his I-

360 Petition had been received on December 9, 2014, and assigning this date as his priority date.

See Compl., ECF No. 1-4, Pl.’s Ex. 3. Four months later, on April 24, 2015, USCIS approved

Plaintiff’s I-360 petition, despite Plaintiff not being age-qualified under the agency’s Regulations.

Comp. ¶ 22. Based on this approval, Plaintiff completed and submitted his I-485 Application to

Register Permanent Residence or Adjust Status, which was received by USCIS on January 11,

2016. Id. ¶ 23; Compl., ECF No. 1-7, Pl.’s Ex. 6.

On September 1, 2016, a little more than 16 months after approving his I-360 Petition,

USCIS sent Plaintiff a “Notice of Intent to Revoke” (“NOIR”) his SIJ Petition approval. Compl.

¶ 25; Compl., ECF No. 1-8, Pl.’s Ex. 7 [hereinafter NOIR]. The NOIR explained that Plaintiff

was 21 years old on the date his application was filed and therefore he did not qualify for special

1
The court uses ECF pagination when referencing filings in this matter.

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juvenile status under 8 C.F.R. § 204.11(c). Id. at 2. The NOIR notified Plaintiff that he had 30

days from receipt of the NOIR “to rebut and/or submit evidence supporting why [his] petition

should not be revoked.” Id. The NOIR further indicated that “[i]f no response is received within

[the 30-day] period the petition will be revoked as indicated.” Id. Plaintiff admits that he did not

respond, as he concedes “no additional evidence existed.” Compl. ¶ 26.

On January 12, 2017, USCIS sent Plaintiff its decision to revoke his approved I-360

Petition, Compl. ¶ 27; Compl., ECF No. 1-9, Pl.’s Ex. 8, as well as its decision to deny his I-485

application based on the revocation of his I-360 approval, Compl. ¶ 27; Compl., ECF No. 1-10,

Pl.’s Ex. 9. Plaintiff was given a 15-day response period for the I-360 revocation and a 30-day

response period for the I-485 denial. Between the 15-day and 30-day time limits, on February 10,

2017, Plaintiff filed a “Brief In Support of Appeal of Revocation of I-360 Approval and Denial of

Adjustment of Status.” Compl. ¶ 29. On September 5, 2017, USCIS notified Plaintiff that his

appeal was untimely based on his failure to respond with the 15-day deadline imposed for his I-

360 revocation, notwithstanding the timeliness of his appeal under the 30-day deadline for his I-

485 denial. Compl. ¶ 30; Compl., ECF No. 1-12, Pl.’s Ex. 11.

C. Procedural History

On July 6, 2018, Plaintiff filed the instant suit against the Secretary of the Department of

Homeland Security; the Director of USCIS; the Chief of the Administrative Appeals Unit; and the

Field Office Director of the Virginia-Washington Field Office of USCIS. His Complaint advances

two claims. First, he alleges that Defendants violated the Administrative Procedure Act (“APA”),

5 U.S.C. §§ 701 et seq., by arbitrarily and capriciously revoking Plaintiff’s I-360 Petition based

on (1) the maintenance of “unreasonable filing requirements for I-360 applications” and (2) “the

time elapsed between approval and revocation was unreasonable.” Compl. ¶ 40. Second, Plaintiff

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claims that Defendants violated his constitutional rights of Equal Protection and Due Process by

allowing “[c]ertain immigration applicants, including those listed at https://www.uscis.gov/file-

online,” to electronically file applications whereas SIJ applicants cannot. Compl. ¶¶ 47–49.

On October 9, 2018, Defendants filed a Motion to Dismiss Plaintiff’s Complaint in its

entirety for lack of subject matter jurisdiction and for failure to state a claim upon which relief may

be granted. Defs.’ Mot. to Dismiss, ECF No. 6 [hereinafter Defs.’ Mot.].

III. LEGAL STANDARD

A. Rule 12(b)(1)

Defendants’ motion to dismiss for lack of subject-matter jurisdiction arises under Federal

Rule of Civil Procedure 12(b)(1). See Fed. R. Civ. P. 12(b)(1). When deciding a motion under

Rule 12(b)(1), a court must accept all well-pleaded factual allegations in the complaint as true.

See Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253–54 (D.C. Cir.

2005). In addition, the court may consider “such materials outside the pleadings as it deems

appropriate to resolve the question whether it has jurisdiction to hear the case.” Scolaro v. D.C.

Bd. of Elections & Ethics, et al., 104 F. Supp. 2d 18, 22 (D.D.C. 2000); see Herbert v. Nat’l Acad.

of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). Specifically, when it is necessary to look beyond the

face of the complaint to determine whether the court has subject matter jurisdiction, “the court

may consider the complaint supplemented by undisputed facts evidenced in the record, or the

complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coal.

for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation

marks and citation omitted). The plaintiff bears the burden of establishing the court’s subject

matter jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

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 B. Rule 12(b)(6)

Defendants’ alternative ground for dismissal for “failure to state a claim upon which relief

can be granted” arises under Rule 12(b)(6). Fed. R. Civ. P. 12(b)(6). To survive a motion to

dismiss brought under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially

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. The factual allegations in

the complaint need not be “detailed,” but Rule 8’s pleading standard “demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (internal quotation marks

omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. If the facts as alleged are not “enough to raise a right to relief

above the speculative level,” then a court should grant the defendant's Rule 12(b)(6) motion.

Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012).

In evaluating a motion to dismiss under Rule 12(b)(6), the court must accept a plaintiff's

“factual allegations . . . as true,” Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 67 (D.C. Cir.

2015), and “construe the complaint ‘in favor of the plaintiff, who must be granted the benefit of

all inferences that can be derived from the facts alleged,’” Hettinga, 677 F.3d at 476 (quoting

Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). The court need not accept as true,

however, “a legal conclusion couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265,

286 (1986), or “inferences . . . unsupported by the facts set out in the complaint,” Kowal v. MCI

Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

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IV. ANALYSIS

A. Subject-Matter Jurisdiction

Defendants assert that the court lacks subject matter jurisdiction in this case by operation

of the INA’s jurisdiction-stripping clause. As pertinent here, that statutory provision provides:

(B) Denials of discretionary relief. Notwithstanding any other
provision of law (statutory or nonstatutory), . . . 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) of this title.

8 U.S.C. § 1252(a)(2)(B). Defendants rely on subsection (ii), arguing that revoking Plaintiff’s I-

360 Petition qualifies as “any other decision or action of . . . the Secretary of Homeland Security

the authority for which is specified under this subchapter to be in the discretion of the . . . Secretary

of Homeland Security.” Defendants point to 8 U.S.C. § 1155 as the source of the Secretary’s

discretionary action here, which provides: “The Secretary of Homeland Security may, at any time,

for what he deems to be good and sufficient cause, revoke the approval of any petition approved

by him under section 1154 of this title.” 8 U.S.C. § 1155.

Plaintiff disputes that the jurisdiction-stripping provision applies in this case. He argues

that where, as here, “the government contends that the result was compelled by rule without the

need for any exercise of discretion,” then section 1155 does not provide a jurisdictional bar. Pl.’s

Opp’n to Defs.’ Mot, ECF No. 7 [hereinafter Pl.’s Opp’n], at 3. The result “compelled” by rule in

this case, Plaintiff claims, is the revocation of his Petition because he was not “under twenty-one

years of age” on the date USCIS received it.

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 The D.C. Circuit has not yet opined on whether revocations pursuant to section 1155 are

unreviewable acts of discretion by the Secretary of Homeland Security. Defendants are correct

that a majority of circuits that have examined the issue have held that section 1155 renders petition

revocations unreviewable. See Defs.’ Mot. at 4–5 (citing Bultasa Buddhist Temple of Chicago v.

Nielsen, 878 F.3d 570, 573–74 (7th Cir. 2017); Bernardo ex rel. M & K Eng’g, Inc. v. Johnson,

814 F.3d 481, 482 (1st Cir. 2016); Mehanna v. U.S. Citizenship & Immigration Servs., 677 F.3d

312, 314–15 (6th Cir. 2012); Green v. Napolitano, 627 F.3d 1341, 1344–46 (10th Cir. 2010);

Abdelwahab v. Frazier, 578 F.3d 817, 821 (8th Cir. 2009); Sands v. U.S. Dep’t of Homeland Sec.,

308 Fed. Appx. 418, 419–20 (11th Cir. 2009); Ghanem v. Upchurch, 481 F.3d 222, 223–24 (5th

Cir. 2007); Jillin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 205–06 (3d Cir. 2006); El-Khader

v. Monica, 366 F.3d 562, 566 (7th Cir. 2004)). Those cases have focused on Congress’s use of the

terms “may,” “at any time,” and “deems” in section 1155 to conclude that petition revocations are

judicially unreviewable. See, e.g., Jillin Pharm. USA, 447 F.3d at 205–06. Two cases from this

District have followed the majority approach. See Mohammad v. Napolitano, 680 F. Supp. 2d 1,

6 (D.D.C. 2009); see also Systronics Corp. v. Immigration and Naturalization Serv., 153 F. Supp.

2d 7, 12 (D.D.C. 2001) (“In the absence of any factual standards to discern when the Attorney

General has ‘good and sufficient cause’ to revoke a petition, this Court finds that matter to be in

the discretion of the Attorney General and unreviewable.”). Only the Ninth Circuit has found that

courts may review permit revocations, finding that the phrase “good and sufficient cause” in

section 1155 provides a standard for judicial review. See ANA Int’l, Inc. v. Way, 393 F.3d 886

(9th Cir. 2004).

As Plaintiff points out, however, none of the above-identified cases concern the situation

presented in this case, namely, where USCIS’s revocation is rooted in a requirement that involves

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little or no exercise of judgment—Plaintiff was not “under twenty-one years of age” at the time of

filing—as opposed to one in which the agency exercises some judgment about eligibility criteria.

See, e.g., Jillin Pharm. USA, 447 F.3d at 198 (revocation decision based on finding that the

petitioner was not working in an executive or managerial capacity); Bernardo, 814 F.3d at 483

(revocation decision based on insufficient work qualifications). As Plaintiff puts it, “where the

government contends that the result was compelled by rule without the need for any exercise of

discretion, there is no bar on jurisdiction.” Pl.’s Opp’n at 3.

Ultimately, the court need not determine whether the distinction Plaintiff attempts to draw

is one of legal consequence because Plaintiff’s APA claim does not rest on whether the agency

correctly determined that he was “under twenty-one years of age” at the time the agency received

his Petition. Instead, Plaintiff makes two different challenges under the APA, neither of which

involves questioning the agency’s determination of Plaintiff’s age at the time of filing. First, he

contests “defendants’ unreasonable filing requirements” for I-360 applications. Compl. ¶ 40.

Specifically, he questions “USCIS’ filing rules which do not permit same day hand or electronic

delivery.” Pl.’s Appeal Br. at 4.2 Plaintiff avers that he “had ample time to [file his I-360 Petition]

either electronically or in person on [the date he received his state court order]. However,

Defendants’ own rules make such filings impossible.” Compl. ¶ 36. Second, Plaintiff avers that

the agency acted arbitrarily and capriciously “because the time elapsed between approval and

revocation was unreasonable.” Id. ¶ 40. He points out that, even though the agency knew he was

2
Plaintiff’s Complaint challenges the “unreasonable [I-360] filing requirements as set forth in the brief labeled Exhibit
10.” Compl. ¶ 40. Exhibit 10 to Plaintiff’s Complaint is his “Brief in Support of Appeal of Revocation of I-360
Approval and Denial of Adjustment of Status.” See Pl.’s Appeal Br. It is in that Brief that Plaintiff complains about
“USCIS’ filing rules which do not permit same day hand or electronic filing.” Id. at 2; see also id. (arguing that
“Petitioner should not be prejudiced by the archaic administrative procedure which does not permit same day filing”).

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21 years of age on the day he filed his I-360 Petition, Defendants initially approved the Petition,

only to revoke it 16 months later. See id. ¶ 37.

As explained below, the court concludes that it has jurisdiction to hear Plaintiff’s challenge

to the agency’s “unreasonable filing requirements,” but not the agency’s “unreasonable” delay in

revoking the Petition.

1. “Unreasonable Filing Requirements”

As noted, Defendants rely on section 1252(a)(2)(B)(ii) as barring jurisdiction over

USCIS’s decision of revocation. See Defs.’ Mot. at 4. That provision forecloses review of

“discretionary” acts of the Secretary of Homeland Security “the authority for which is specified

under this subchapter.” 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). The referenced

“subchapter” is Subchapter II of Title 8, Chapter 12, entitled “Immigration.” Subchapter II

contains nine Parts, covering a range of subjects, including “Admission Qualifications for Aliens”

(Part II), “Issuance of Entry Documents” (Part III), and “Adjustment and Change of Status” (Part

V).

Subchapter II does not, however, contain Congress’s delegation of authority to the

Secretary to promulgate regulations necessary to carry out his functions under the INA. That

congressional delegation is found elsewhere, in Subchapter I. Section 1103(a) charges the

Secretary of Homeland Security “with the administration and enforcement of this chapter and all

other laws relating to the immigration and naturalization of aliens,” except as otherwise provided

by statute. 8 U.S.C. § 1103(a)(1). Congress granted the Secretary broad authority to “establish

such regulations . . . [and] issue such instructions . . . as he deems necessary for carrying out his

authority under the provisions of this chapter.” Id. § 1103(a)(3). It is pursuant to this delegation

of authority that the Secretary promulgated the Regulations governing eligibility for special

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immigrant juvenile status and the date on which eligibility is determined. And it is this

constellation of regulations, and the agency’s implementation of them, that Plaintiff claims is

arbitrary and capricious. Nothing in section 1252(a)(2)(B)(ii) forecloses review of such agency

action.

There exists a “strong presumption that Congress intends judicial review of administrative

action.” Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986). Defendants point

to no statutory provision that would foreclose the court’s jurisdiction to review the applicable

regulations and their implementation. Without any statutory bar, there is nothing to preclude this

court’s review of this aspect of Plaintiff’s APA claim.3

2. “Unreasonable” Delay

The court reaches a different conclusion with respect to Plaintiff’s assertion that USCIS

violated the APA because of the “unreasonable” delay in revoking his Petition. The court lacks

subject matter jurisdiction to review that claim. Section 1155 empowers the Secretary to “revoke

the approval of any petition” “at any time.” 8 U.S.C. § 1155 (emphasis added). Congress therefore

placed no time limitation on the Secretary’s ability to revoke a previously approved petition. Given

the unlimited discretion afforded the Secretary as to the timing of a revocation decision, review of

the “reasonableness” of the time it took the Secretary to revoke Plaintiff’s Petition falls squarely

outside the court’s jurisdiction. Accordingly, the court cannot review the temporal aspect of

Plaintiff’s APA claim.

3
It may be that the court’s review of the type of agency regulations at issue here is circumscribed. See Am. Farm
Lines v. Black Ball Freight Serv., 397 U.S. 532, 539 (1970); Lopez v. FAA, 318 F.3d 242, 247 (D.C. Cir. 2003); Ngure
v. Ashcroft, 367 F.3d 975, 983 (8th Cir. 2004) (“[W]here a procedural rule is designed primarily to benefit the agency
in carrying out its functions, judicial review may be circumscribed.”) (citing Am. Farm Lines, 397 U.S. at 539).
However, neither party has addressed this issue and therefore the court does not consider it, leaving it for resolution
on summary judgment.

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 B. Failure to State a Claim

Defendants also argue that Plaintiff’s Complaint fails to state a claim upon which relief can

be granted, under Fed. R. Civ. P. 12(b)(6), “by failing to provide evidence that [Plaintiff] was

indeed eligible for I-360 SIJ status at the time his petition was filed.” Defs.’ Mot. at 6. Essentially,

Defendants’ argument hinges on the contention that a “petitioner must meet all of the requirements

of 8 C.F.R. § 204.11(c), including the age restriction” because “[s]uch requirements are

mandatory,” Defs.’ Mot. at 7, but “Plaintiff has not offered any factual evidence to refute” that he

had reached the age of 21 at the time that his petition was considered filed, id. at 8.

This argument, however, misconstrues the nature of Plaintiff’s claim, or at least the one

that the court can review. Put succinctly, Plaintiff alleges that USCIS acted arbitrarily and

capriciously by affording him no means by which to timely file his Petition on the day before his

21st birthday, when he received the necessary certification from the juvenile court. To bolster that

claim, Plaintiff seems to suggest different treatment from similarly situated applicants. He alleges,

for instance, that USCIS offers same-day electronic filing for other types of Petitions, but not I-

360 Petitions. Compl. ¶ 47. Such an allegation of disparate treatment makes out a plausible APA

claim. Cf. Regents of the Univ. of California v. Burwell, 155 F. Supp. 3d 31, 53 (D.D.C. 2016),

aff’d sub nom. Regents of the Univ. of California v. Price, 681 F. App’x 5 (D.C. Cir. 2017)

(“disparate treatment of similarly situated entities may give rise to a valid APA challenge”)

(internal quotation marks and citation omitted). Defendants may be able to successfully defend

the regulations and paper-filing system required for I-360 petitions in the final analysis, but the

motion to dismiss stage is not the proper procedural posture at which to make that determination.

The court therefore denies Defendants’ Motion to Dismiss for failure to state a claim.

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 C. Constitutional Claims

Plaintiff’s Complaint also advances claims under the Equal Protection and Due Process

Clauses on the theory that his inability to file electronically, when other applicants are able to do

so, gives rise to a constitutional violation. See Compl. ¶¶ 43–49. Defendants assert that this court

lacks jurisdiction to consider these claims. See Defs.’ Mot. at 6. They are correct.

Under the INA, jurisdiction to review constitutional claims rests exclusively in the circuit

courts of appeal. The Act provides:

Judicial review of certain legal claims. Nothing in subparagraph
(B) or (C), or in any other provision of this chapter (other than this
section) which limits or eliminates judicial review, shall be
construed as precluding review of constitutional claims or questions
of law raised upon a petition for review filed with an appropriate
court of appeals in accordance with this section.

8 U.S.C. § 1252(a)(2)(D) (emphasis added). As applied here, this provision makes it clear that

Plaintiff’s constitutional challenges to his I-360 Petition revocation can be heard only by the

D.C. Circuit. See Adam v. Chertoff, No. CIVA 05-1710 RMC, 2006 WL 3334962, at *2 (D.D.C.

Nov. 16, 2006) (“Judicial review of the denial of an [I-485 Petition] is precluded, except upon

petition for review filed with a court of appeals. 8 U.S.C. § 1252(a)(2)(D). Even then, such review

is limited to constitutional claims or questions of law.”).4

Rather than dismiss the claims, Plaintiff urges that “it would be more appropriate to transfer

the constitutional claims to the court of appeals.” Pl.’s Opp’n at 6. The court is inclined to grant

the requested transfer but is unclear on whether Plaintiff wishes to transfer the claims now or after

4
In their Reply brief, Defendants offer a substantive response to Plaintiff’s constitutional claims, arguing that they
have a rational basis for treating I-360 Petitions differently from other immigration petitions based on the “substantial
infrastructure and resources that would be required for the creation of an electronic environment for I-360 petitions,
and to ensure the proper filtering of I-360s.” Defs.’ Reply Brief, ECF No. 9, at 8–10. The court does not consider
this argument, as only the D.C. Circuit can address it.

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this court has resolved his APA claim. Plaintiff shall be prepared to address this question at the

status hearing set below.

V. CONCLUSION AND ORDER

For the reasons outlined above, the court grants in part and denies in part Defendants’

Motion to Dismiss as to Plaintiff’s APA claim, and holds Plaintiff’s constitutional claims in

abeyance. The parties shall appear for a status conference on April 10, 2019, at 11:00 a.m. in

Courtroom 10.

Dated: March 14, 2019
Amit P. Mehta
United States District Judge

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