UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MEINA XIE, )
)
Plaintiff, )
)

v. ) Civil Case No. 13-606 (RJL)
)
JOHN F. KERRY, as United States )

Secretary of State, )  § 1 § w
)

Defendant. ) MAR 05 zmli
v ci;d)]lerk, U.S. Dlstrict & Bankruptcy
tsf the D‘ °
MEMORANDUM OPINION ur or istrictof Co!umbla

(February  2014) [1)1<1. ##6, 91

Plaintiff Meina Xie ("Xie" or "plaintiff’) commenced this action on April 30,
2013, seeking to compel John F. Kerry, in his official capacity as United States Secretary
of State ("Secretary" or "defendant"), to process certain types of immigrant visas
benefitting Chinese nationals. See Compl. [Dkt. #1]. NoW before the Court are the
defendant’s Motion to Dismiss, or, in the Alternative, Moti0n for Summary Judgment
[Dkt. #6] and the plaintiffs Cross-Motion for Summary Judgment [Dkt. #9]. Upon
consideration of the parties’ pleadings, relevant law, and the entire record in this case, the
defendant’s Motion to Dismiss is GRANTED and plaintiff’s Cross-Motion for Summary
Judgment is DENIED.

BACKGROUND
This case involves a challenge to the Department of State’s ("DC)S") allocation of

the limited number of U.S. entry visas granted to individuals in specific immigration

categories. Congress has imposed limitations via the Immigration and Nationality Act
("INA") on the number of visas that D()S may allocate on a per-country basis. See 8
U.S.C. § l l52. DOS is required to "make reasonable estimates of the anticipated
numbers of visas to be issued . . . within each of the categories [established by Congress]
and to rely upon such estimates in authorizing the issuance of visas." 8 U.S.C. §1l53(g);
see also Declaration of Charles W. Oppenheim ("Oppenheim Decl.") at 1l 2 [Dkt. #6-1].
DOS assigns a "priority date" to all "documentarily qualified" applicants for U.S. visas
based on the date their applications were received. See Oppenheim Decl. at jljl 2-3.

DOS then establishes "cut-off dates" for each category of applicant based on the
estimated number of available visas. Ia’. lf the number of qualified applicants for a
certain category exceeds the number of available visas, then all applicants with priority
dates after the established cut-off date for that category are not granted visas. Id. Only
applicants with priority numbers earlier than the established cut-off dates are scheduled
for interviews and, thus, able to obtain visas to enter the United States. See z`a’. at ‘ll 4.

Xie, a native of China, is the beneficiary of an approved I-140 immigration
petition in the "other worker" sub-category ("EW") of the larger "employment-based"
immigration category ("EB-3").‘ See 8 U.S.C. § ll53(b)(3)(A); Plaintiff’s Statement of
Material Facts ("Pl.’s Facts") at m 1-2 [Dkt. #7]. "Other workers" are defined as

"qualified immigrants who are capable . . . of performing unskilled labor . . . for which

l EW, E3, and EB-3 are visa symbols used by DOS to reference different immigration visa
categories. See Pl.’s Facts at m 1-2; see also Oppenheim Decl. at M 8-l6. The EB-3
(employment-based) category is made up of 2 sub-categories in addition to EW: "skilled
workers" and "professionals." See 8 U.S.C. § ll53(b)(3); Pl.’s Facts at 11 2. The skilled workers
and professionals sub-categories are collectively referred to as "E3." See Pl.’s Facts at il 2.

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qualified workers are not available in the United States." 8 U.S.C. § ll53(b)(3)(A)(iii).

Plaintiff has an EW priority date of January l7, 2007. Pl.’s Facts at 1l 3. As ofthe filing
of plaintiffs l\/Iotion for Summary Judgment, the China EW cut-off date was March 22,

2004, while the China E3 cut-off date was January l, 2009. Ia'. at ‘W l l, l3.

Xie alleges that DOS is "intentionally and illegally retarding the China EW
priority date? advancement" resulting in "China EW priority dates [that] are unjustifiably
advancing far slower than the EW priority dates generally for natives from all other
countries, and specifically far slower than China E3 . . . priority dates." Compl. at \l 6.
Plaintiff further alleges that "[t]he entire world has cut-off date equivalence among all
three EB-3 sub-categories, e§ep_t China," Pl.’s Facts at il 12, and therefore DOS is guilty
of "illicit discrimination based on national origin in violation of (a) the Equal Protection
Clause and (b) 42 U.S.C. § 2000d et seq.," Compl. at jl 24.

Plaintiff brings this case seeking a writ of mandamus compelling DOS to adjust
the cut-off date for China EW immigration visa applicants to match the cut-off dates
applied to other EB-3 sub-categories. See Compl. at 11 36; see also 28 U.S.C. § 1361.

Additionally, plaintiff is seeking review of DOS’S actions-or lack thereof-pursuant to

2 Plaintiff seems to conflate priority dates with cut-off dates, alleging in her Complaint that DOS
is "illegally retarding the China EW priority date advancement," see Compl. at 1 6 (emphasis
added), while arguing in her l\/lotion for Summary Judgment against the disparity between EW
and E3 cztt-ofj’dates, see Pl.’s Opp’n to Def.’s Mot. Summ. J. ("Pl.’s Opp’n") at 2-3. As both
parties agree that visa applicants’ priority dates are determined by the dates on which their visa
applications are received, and thus, conceivably, do not change, this Court will proceed upon its
understanding that plaintiff is challenging the cut-off dates established by DOS for various
immigration categories, and not the priority dates assigned to individual applicants. See Pl.’s
Opp’n at 5; Oppenheim Decl. at W 3-4. See generally 8 U.S.C. § l l53(e)(l) ("lmmigrant visas .
. . shall be issued to eligible immigrants in the order in which a petition on behalf of each such
immigrant is filed with the Attorney General.").

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the Administrative Procedures Act ("APA"), see Compl. at ll 4(); see also 5 U.S.C. §§
701-706, a declaratory judgment finding that DOS has failed to adhere to the INA, see
Compl. at llll 45-46, and a permanent injunction enjoining DOS from "processing China
EW cases disparately from all other EB-3 and EW cases," see Compl. at ll 5().3
STANDARD OF REVIEW
The court may dismiss a complaint or any portion of it for failure to state a claim

upon which relief may be granted. FED. R. CIV. P. 12(b)(6). In considering a motion to
dismiss, however, the court may only consider "the facts alleged in the cornplaint, any
documents either attached to or incorporated in the complaint and matters of which [the
court] may take judicial notice." E.E.O.C. v. St, Francis Xavier Parochial Sclz., ll7 F.3d
62l, 624 (D.C. Cir. l997). To survive a motion to dismiss, a plaintiff must plead "factual
content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

3 Although plaintiff seeks relief under both mandamus (28 U.S.C. § 1361), see Compl. at llll 35-
38, and the APA (5 U.S.C. § 7()6(1)), see Compl. at llll 40-43, the Court will analyze defendant’s
l\/Iotion to Dismiss through the lens of plaintiffs APA claim. The relief available under the APA
and mandamus are largely coextensive. Indeed, the APA may only compel "discrete agency
action that it is required to take," and mandamus relief is "normally limited to enforcement of a
specific, unequivocal command . . . about which [an official] had no discretion whatever."
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 63-64 (20()4) (internal quotations and
citation omitted). Moreover, as mandamus relief is "discretionary" and "a drastic remedy, to be
invoked only in extraordinary circumstances, and only with great caution," Weber v. U.S. Dep ’t
ofState, 885 F. Supp. 2d 46, 52 (D.D.C. 2012) (internal quotations and citation omitted), it
stands to reason that if plaintiff is not entitled to relief under the APA, she is likewise not entitled
to relief under the more strenuous standard ofmandamus. See Bond v. U.S. Dep ’t of Justice, 828
F. Supp. 2d 60, 75 (D.D.C. 2011) ("writs of mandamus compelling agency action are hardly ever
granted) (internal quotations and citation omitted); see also In re Watson, 910 F. Supp. 2d 142,
148 (D.D.C. 2012) (dismissing case for failure to state a claim under APA or l\/landamus Act,
where agency action was "entirely discretionary").

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ln considering a Rule 12(b)(6) motion, the court must 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." Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir.
1979) (internal quotations omitted). However, factual allegations, even though assumed
to be true, must still "be enough to raise a right to relief above the speculative level."
BellAtl. Corp. v. Two)nl)ly, 550 U.S. 544, 555 (2007). Moreover, the Court need not
accept legal conclusions cast in the form of factual allegations, nor inferences drawn by a
plaintiff if such inferences are not supported by the facts set out in the complaint. See
Kowal v. MCI Co)nmunications Corp., 16 F.3d l27l, 1276 (D.C. Cir. 1994).

ANALYSIS

Under the APA, a federal court must compel agency action "unlawfully withheld
or unreasonably delayed," see 5 U.S.C. § 7()6(1), and

hold unlawful and set aside agency action, findings, and conclusions found

to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; (B) contrary to constitutional right, power, privilege,

or immunity; (C) in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right; (D) without observance of procedure

required by law; (E) unsupported by substantial evidence in a case subject

to sections 556 and 557 of this title . . . or; (F) unwarranted by the facts to
the extent that the facts are subject to trial de novo by the reviewing court.

5 U.S.C. §706(2`)(A)-(F). However, a claim brought pursuant to the APA "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. Southern Utah Wt`lderness Alll`ance, 542 U.S. 55, 64
(2004) (emphasis in original); see also 5 U.S.C. § 551(13) (defining "agency action" as

an "agency rule, order, license, sanction, relief, or the equivalent denial thereof, or failure

to act"). An APA claim must fail where the agency action the plaintiff is seeking to
compel is "committed to agency discretion by law." 5 U.S.C. § 70l(a)(2). Unfortunately
for the plaintiff, challenges of agency action pursuant to the APA may not simply seek a
court order directing "wholesale improvement" of an agency program. See Lujan v. Nat ’l
Wildlife Fed’n, 497 U.S. 87l, 891 (1990) ("[R]espondent cannot seek wholesale
improvement of this program by court decree, rather than in the offices of the [agency] or
the halls of Congress, where programmatic improvements are normally made.").

Xie fails to identify any discrete agency action that DOS is required to take.
Instead, plaintiff argues that DOS is required to assign the same cut-off dates for
unskilled Chinese workers as their skilled and professional counterparts. See Pl.’s Opp’n
at 4, 6-7. I disagree To say the least, it strains credulity for plaintiff to contend that a
restructuring of the entire system by which DOS allocates immigration visas would
somehow constitute a "discrete agency action." See Norton, 542 U.S. at 64 (“‘The
limitation to discrete agency action precludes . . . broad programmatic attack[s]."); see
also Lujan, 497 U.S. at 891 (APA challenge must be against "particular" agency action
and may not seek "wholesale improvement").

Moreover, even if a restructuring of the visa allocation system could be construed
as a discrete agency action, plaintiffs claim must still fail because she can point to no
authority legally requiring DOS to apply the same cut-off date to skilled and unskilled
workers. See Li v. Ker)j), 710 F.3d 995, 1004 (9th Cir. 1995) ("We have no authority to
compel agency action merely because the agency is not doing something we may think it

should do."). To the contrary, Congress itself treated the sub-categories as different and

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authorized DOS to use its discretion in estimating the number of available visas and
establishing cut-off dates for each.”' See 8 U.S.C. § ll53(g) ("the Secretary of State may
make reasonable estimates of the anticipated numbers of visas to be issued during any
quarter of any fiscal year within each of the categories."); Beshir v. Holder, No. l0-CV-
652, 2014 WL 284886, at *6 (D.D.C. Jan. 27, 20l4) ("because the pace of adjudication is
discretionary, neither the APA nor the Mandamus Act provides a basis for this Court to
assertjurisdiction") (citing Norton, 542 U.S. at 63-64). Compare 8 U.S.C. §
ll53(b)(3)(A)(i) (Skilled workers), and 8 U.S.C. § ll53(b)(3)(A)(ii) (Professionals), with
8 U.S.C. § ll53(b)(3)(A)(iii) (Other workers).
CONCLUSION

Thus, for all of the foregoing reasons, the Court GRANTS defendant’s l\/Iotion to

Dismiss and DENIES plaintiffs’ Cross-Motion for Summary Judgment. An Order

consistent with this decision accompanies this Memorandum Opinion.

RICHARD J.!LQN
United States District Judge

v

4 Indeed, far from requiring DOS to apply the same cut-off date to skilled and unskilled workers,
Congress actually chose to impose an additional limitation on the number of available EW
immigration visas_expressly captioned "Limitation on other workers"-that it chose not to
impose on either skilled workers or professionals. See 8 U.S.C. § ll53(b)(3)(B).

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