                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 AJAY NAIDU RAVULAPALLI, et al.,

    Plaintiffs,

      v.                                                    Civil Action No. 10–447 (CKK)
 JANET NAPOLITANO, Secretary, U.S.
 Department of Homeland Security, et al.,

    Defendants.


                                  MEMORANDUM OPINION
                                     (March 29, 2011)

       Plaintiffs Ajay Naidu Ravulapalli and Lakshmi Alekhya Ravulapalli (collectively,

“Plaintiffs”) bring this action against Defendants Janet Napolitano, Secretary of the Department

of Homeland Security, Alejandro Mayorkas, Director of U.S. Citizenship and Immigration

Services (“USCIS”), and David L. Roark, Director of the USCIS Texas Service Center, in their

official capacities (collectively, “Defendants”). Plaintiffs contend that Defendants unlawfully

denied their applications to adjust their immigration status in violation of federal law and

preexisting USCIS policy. Plaintiffs assert causes of action under the Administrative Procedure

Act, 5 U.S.C. § 551 et seq. (“APA”), the Mandamus Act, 28 U.S.C. § 1361, and the Fifth

Amendment to the U.S. Constitution. Presently pending before the Court is Defendants’ [8]

Motion to Dismiss or, in the Alternative, to Transfer. For the reasons explained below, the Court

shall GRANT-IN-PART and DENY-IN-PART Defendants’ motion to dismiss and DENY

Defendants’ alternative motion to transfer.
                                       I. BACKGROUND

       A.      Statutory and Regulatory Background

       The Immigration and Nationality Act, codified in Title 8 of the U.S. Code and its

accompanying regulations, sets out a three-step process by which an alien living in the United

States may become a permanent resident based on an employment opportunity. First, the

employer seeking to hire the alien must apply to the Department of Labor for certification that

the issuance of an employment-based visa and admission of the alien worker to the United States

will not have an adverse effect on the American work force. See 8 U.S.C. § 1182(a)(5)(A)(i). If

the Department of Labor grants this certification, the employer may then file a petition to have

the alien worker classified according to one of several preference categories, such as aliens who

are members of professions holding advanced degrees whose skills will benefit the economy.

See id. § 1153(b) & 1154(a)(1)(F). The employer files this petition by submitting a Form I-140

Immigrant Petition for Alien Worker (“Form I-140” or “I-140 petition”), to USCIS. See 8 C.F.R.

§ 204.5. The alien is considered the “beneficiary” of the I-140 petition.

       The third step is for the employee beneficiary to file an application to adjust his or her

status to become a lawful permanent resident. See 8 U.S.C. § 1255. This application is filed on

a Form I-485, Application to Register Permanent Residence or Adjust Status (“Form I-485” or

“I-485 application”). An approved I-140 petition is a prerequisite to the approval of an I-485

application. See 8 U.S.C. § 1255(a). The spouse of an employee beneficiary may also file an I-

485 application based on the marital relationship. 8 U.S.C. § 1553(d). Prior to July 31, 2002, an

alien worker could not file a Form I-185 until the underlying Form I-140 had been approved.

See 8 C.F.R. § 245.2(a)(2)(i) (2000) (“Before an application for adjustment of status under


                                                 2
section 245 of the Act may be considered properly filed, a visa must be immediately available. If

a visa would be immediately available upon approval of a visa petition, the application will not

be considered properly filed unless such petition has first been approved.”). An employer may

withdraw an I-140 petition at any time while it is pending or after it is approved until the

beneficiary is granted adjustment of status based on the petition. 8 C.F.R. § 103.2(b)(6).

       In 2000, Congress passed the American Competitiveness in the Twenty-First Century Act

of 2000, Pub. L. No. 106-313, 114 Stat. 1251 (“AC21”). Section 106(c) of AC21 provides that

an I-140 petition “for an individual whose application for adjustment of status pursuant to section

245 has been filed and remained unadjudicated for 180 days or more shall remain valid with

respect to a new job if the individual changes jobs or employers if the new job is in the same or

similar occupational classification as the job for which the petition was filed.” 114 Stat. at 1254;

8 U.S.C. § 1154(j). This provision, known generally as the “Portability Provision,” was designed

to provide job flexibility for applicants whose visas had been approved but whose applications

for adjustment of status were not adjudicated in a timely fashion. Immediately after AC21 went

into effect, an alien who obtained an employment-based visa petition based on an approved Form

I-140 submitted by an employer could file an I-485 application and, if the application was not

approved within 180 days, switch to another job within the same field without fear that the

application would be denied due to the lack of an approved visa petition for the new employer.

       On June 19, 2001, USCIS1 issued a policy memorandum outlining procedures for



       1
          Prior to March 1, 2003, the functions of USCIS were carried out by its predecessor
agency, the Immigration and Naturalization Service. See 6 U.S.C. § 271(b); 8 U.S.C. § 1103.
For simplicity, the Court shall not make any distinction between the agencies and refer to them at
all times as USCIS.

                                                  3
processing visa petitions based on the changes imposed by AC21. See Compl. ¶ 36 & Ex. B

(6/19/2001 Memorandum from Michael A. Pearson, Exec. Assoc. Comm’r, to Service Center

Directors and Regional Directors). The policy memorandum explained that adjudicators should

not deny applications for adjustment of status on the basis that the alien has changed jobs. See

id. § F(1). The memorandum stated that when the applicant no longer intends to be employed by

the employer who sponsored the visa petition, USCIS should request a letter of employment from

the new employer to determine whether the new job is in the same or similar occupation. Id.

       Effective July 31, 2002, federal regulations were amended to permit a I-485 application to

be filed concurrently with an I-140 Petition when a visa is available. See 8 C.F.R.

§ 245.2(a)(2)(i). The purpose of this rule change was to eliminate the delay that occurred

between the approval of the I-140 Petition and the filing of the I-485 application. See Allowing

in Certain Circumstances for the Filing of Form I-140 Visa Petition Concurrently with a Form I-

485 Application, 67 Fed. Reg. 49561-01 (July 31, 2002).

       On August 4, 2003, USCIS issued a memorandum addressing the requirements of the

AC21 Portability Provision in light of the change in regulations allowing concurrent filing of I-

140 petitions and I-485 applications. See Compl. ¶ 37 & Ex. C (8/4/2003 Memorandum from

William R. Yates, Acting Assoc. Dir. for Operations, USCIS, to USCIS Service Center Directors

and Regional Directors). The memorandum explained that the guidance from the June 2001

policy memorandum was still in effect, explaining that “[i]f the Form I-140 (‘immigration

petition’) has been approved and the Form I-485 (‘adjustment application’) has been filed and

remained unadjudicated for 180 days or more (as measured from the Form I-485 receipt date),

the approved Form I-140 will remain valid even if the alien changes jobs or employers as long as


                                                 4
the new offer of employment is in the same or similar occupation.” Id. § A. The memorandum

further explained that in cases where the employer withdraws the I-140 petition after it has been

approved and after the I-485 application has been pending for 180 days, the I-140 petition shall

remain valid pursuant to the AC21 Portability Provision. See id. § B. In such cases, the alien

must then provide USCIS evidence of a qualifying offer of employment from a new employer, or

else the I-485 application will be denied. Id. The memorandum also explained that in cases

where approval of a Form I-140 is revoked or the employer withdraws the Form I-140 before the

alien’s Form I-485 has been pending for 180 days, the approved Form I-140 is no longer valid

with respect to the alien’s application. Id.

       On May 12, 2005, USCIS issued another guidance memorandum addressing the

processing of I-140 petitions and I-485 applications. See Compl. ¶ 39 & Ex. D (5/12/2005

Memorandum from William R. Yates, Assoc. Dir. for Operations, USCIS to Regional Directors

and Service Center Directors). This guidance memorandum presented a series of questions and

answers involving issues that may be faced by adjudicators, including the following:

       Question 1.     How should service centers or district offices process unapproved I-
                       140 petitions that were concurrently filed with I-485 applications that
                       have been pending 180 days in relation to the I-140 portability
                       provisions under § 106(c) of AC21?

       Answer:         If it is discovered that a beneficiary has ported off of an unapproved
                       I-140 and I-485 that has been pending for 180 days or more, the
                       following procedures should be applied:

                       A.      Review the pending I-140 petition to determine if the
                               preponderance of the evidence establishes that the case is
                               approvable or would have been approvable had it been
                               adjudicated within 180 days. If the petition is approvable but
                               for an ability to pay issue or any other issue relating to a time
                               after the filing of the petition, approve the petition on its


                                                  5
                                merits. Then adjudicate the adjustment of status application
                                to determine if the new position is the same or similar
                                occupational classification for I-140 portability purposes.

                        B.      If additional evidence is necessary to resolve a material post-
                                filing issue such as ability to pay, an RFE [Request for
                                Evidence] can be sent to try to resolve the issue. When a
                                response is received, and if the petition is approvable, follow
                                the procedures in part A above.

        ...

        Question 11. When is an I-140 no longer valid for porting purposes?

        Answer:         An I-140 is no longer valid for porting purposes when:

                        A.      an I-140 is withdrawn before the alien’s I-485 has been
                                pending 180 days, or
                        B.      an I-140 is denied or revoked at any time except when it is
                                revoked based on a withdrawal that was submitted after an I-
                                485 has been pending for 180 days.

Id. at 3-7. Plaintiffs call the review process described in the answer to Question 1 a “Yates

Review.” See Compl. ¶ 39. This memorandum was later revised and reissued on December 27,

2005. See id. ¶ 42 & Ex. F.

        On October 12, 2005, USCIS adopted a decision from its Administrative Appeals Office

in the Matter of Al Wazzan as guidance on the administration of the AC21 Portability Provision.

See Compl. ¶ 41 & Ex. E (Matter of Al Wazzan). In that decision, the Administrative Appeals

Office ruled that the Portability Provision did not require USCIS to accept an unadjudicated I-

140 petition as “valid” if there was a basis for denying the petition on the merits. See id. The

decision explained that a petition cannot “remain valid” under the Portability Provision if it was

never valid in the first place. Id.

        On May 30, 2008, USCIS issued a supplemental guidance memorandum relating to the


                                                  6
processing of I-140 petitions and I-485 applications. See Compl. ¶ 43 & Ex. G (5/30/2008

Memorandum from Donald Neufeld, Acting Assoc. Dir., Domestic Operations to Field

Leadership). This memorandum explained that in accordance with the ruling in the Matter of Al

Wazzan, an I-140 petition will not be considered “valid” for purposes of the Portability Provision

merely because it was filed with USCIS and the alien’s I-485 application has been pending for

180 days. See id. § II(5). “In order to be considered valid, an I-140 petition must have been filed

on behalf of an alien who was entitled to the employment-based classification at the time that the

petition was filed, and therefore must be approved prior to a favorable determination of a

portability request made under INA § 204(j) [8 U.S.C. § 1154(j)].” Id.

       B.      Plaintiffs’ Applications for Adjustment of Status

       Plaintiffs Ajay Naidu Ravulapalli and Lakshmi Alekhya Ravulapalli are married citizens

of India and residents of Rockville, Maryland. Compl. ¶¶ 13-14. On January 16, 2007, Mr.

Ravulapalli’s employer, ERP Analysts, Inc. (“ERP”) filed a labor certification application on his

behalf, which was approved by the Department of Labor on January 22, 2007. Id. ¶¶ 47-48.

Based on the approved labor certification application, ERP filed an I-140 petition listing Mr.

Ravulapalli as the intended beneficiary on August 16, 2007. Id. ¶ 49. Mr. Ravulapalli

concurrently filed an I-485 application to adjust his status to lawful permanent resident based on

the I-140 petition. Id. ¶ 50. Mrs. Ravulapalli also filed an I-485 application as a derivative

beneficiary of her husband’s application. Id.

       In November 2008, ERP informed Mr. Ravulapalli that it may need to withdraw the I-140

petition it filed on his behalf. Compl. ¶ 52. Mr. Ravulapalli then decided to work for

BearingPoint, Inc., which was later acquired by Deloitte Consulting LLP (“Deloitte”). Id. ¶¶ 52-


                                                 7
53, 62. Mr. Ravulapalli presently works for Deloitte in a job that is in the same or similar

occupational classification as the job for which the I-140 petition was filed. Id. ¶ 62. At the time

Mr. Ravulapalli left the employ of ERP, USCIS had not yet adjudicated ERP’s I-140 petition or

the Ravulapallis’ I-485 applications. Id. ¶¶ 51, 54. On March 24, 2009, USCIS denied

Plaintiffs’ I-485 applications based on ERP’s withdrawal of the I-140 petition. Id. ¶ 54 & Ex. M

(3/24/2009 Notice of Decision). The decision letter stated that the underlying visa petition upon

which Mr. Ravulapalli’s application was based had been withdrawn as of March 24, 2009 and

therefore he was ineligible to adjust status. Id. Mrs. Ravulapalli’s application was denied based

on the denial of her husband’s application. Id. The record indicates that ERP sent a letter to

USCIS requesting withdrawal of the I-140 petition on November 17, 2008. See Compl. Ex. N;

Defs.’ Mot. to Dismiss, Ex. 1.

       On April 13, 2009, Plaintiffs filed a motion to reopen and/or reconsider USCIS’s denial

of their I-485 applications, arguing that their applications should remain valid under the

Portability Provision in AC21. Compl. ¶ 58. On June 2, 2009, USCIS denied Plaintiffs’ motion

to reconsider on the grounds that the I-140 petition on which their applications were based had

been withdrawn. Id. ¶ 59 & Ex. N.

       C.      Plaintiffs’ Claims in Federal Court

       Plaintiffs filed this action on March 17, 2010. In their Complaint, Plaintiffs assert five

causes of action relating to Defendants’ denial of their I-485 applications to adjust status. In

Count One, Plaintiffs claim that Defendants had a mandatory duty under the Portability Provision

in AC21, 8 U.S.C. § 1154(j), to treat the I-140 petition submitted by ERP as valid with respect to

Mr. Ravulapalli’s new job because his I-485 application remained unadjudicated for 180 days at


                                                  8
the time ERP sought to withdraw the petition. See Compl. ¶¶ 69-72. In Count Two, Plaintiffs

claim that Defendants acted arbitrarily and capriciously by departing from internal policies

requiring them to consider the merits of the I-140 petition before denying their I-485

applications. See id. ¶¶ 74-78. In Count Three, Plaintiffs claim that Defendants’ refusal to

follow their own policy guidance amounts to a legislative rule change that requires USCIS to

follow notice-and-comment rulemaking procedures under 5 U.S.C. § 553. See Compl. ¶¶ 81-90.

Plaintiffs assert these claims under the judicial review provisions of the Administrative

Procedure Act (“APA”), 5 U.S.C. §§ 701-06. Pursuant to the APA, “[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.” 5 U.S.C. § 702. A

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.” Id. § 706(2).

       In Count Four of their Complaint, Plaintiffs seek mandamus under 28 U.S.C. § 1361 to

compel Defendants to adjudicate their I-485 applications. See Compl. ¶¶ 92-97. In Count Five,

Plaintiffs claim that Defendants’ distinction between I-485 applicants whose I-140 petitions are

approved and later revoked and I-485 applicants whose I-140 petitions are approvable and later

withdrawn lacks a rational basis and violates the equal protection guarantee implicit in the due

process clause of the Fifth Amendment to the U.S. Constitution. See id. ¶¶ 99-103. Plaintiffs

seek declaratory relief relating to the alleged violations and an order compelling Defendants to

re-open Plaintiffs’ I-485 applications and determine whether they are eligible to adjust status

based on whether the I-140 petition was approvable when filed. Id., Prayer for Relief.


                                                  9
                                    II. LEGAL STANDARD

       Defendants move to dismiss Plaintiffs’ Complaint in part for lack of subject matter

jurisdiction based on a lack of standing and in part for failure to state claim upon which relief can

be granted.

       A.      Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1)

       A court must dismiss a case pursuant to Rule 12(b)(1) when it lacks subject matter

jurisdiction. In determining whether there is 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.” Coalition for Underground

Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted); see also Jerome

Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (“[T]he

district court may consider materials outside the pleadings in deciding whether to grant a motion

to dismiss for lack of jurisdiction.”). “At the motion to dismiss stage, counseled complaints, as

well as pro se complaints, are to be construed with sufficient liberality to afford all possible

inferences favorable to the pleader on allegations of fact.” Settles v. U.S. Parole Comm’n, 429

F.3d 1098, 1106 (D.C. Cir. 2005). In spite of the favorable inferences that a plaintiff receives on

a motion to dismiss, it remains the plaintiff’s burden to prove subject matter jurisdiction by a

preponderance of the evidence. Am. Farm Bureau v. Envtl. Prot. Agency, 121 F. Supp. 2d 84, 90

(D.D.C. 2000). “Although a court must accept as true all factual allegations contained in the

complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), [a] plaintiff[’s] factual

allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in

resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd.,


                                                 10
503 F. Supp. 2d 163, 170 (D.D.C. 2007) (internal citations and quotation marks omitted).

       B.      Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

       Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. (8)(a), “in

order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it

rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355

U.S. 41, 47 (1957)). Although “detailed factual allegations” are not necessary to withstand a

Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must furnish “more than

labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Id. “Nor

does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at

557). Rather, a complaint must contain sufficient factual allegations that if accepted as true,

“state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct.

1949 (citing Twombly, 550 U.S. at 556).

       When considering a motion to dismiss for failure to state a claim, the court must construe

the complaint in a light most favorable to the plaintiff and must accept as true all reasonable

factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of

Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also Schuler v.

United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (“The complaint must be liberally construed in

favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from


                                                  11
the facts alleged”) (internal quotation omitted). However, a plaintiff must provide more than just

“a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1950. When a

complaint’s well-pleaded facts do not enable a court, “draw[ing] on its judicial experience and

common sense,” “to infer more than the mere possibility of misconduct,” the complaint has not

shown that the pleader is entitled to relief. Id.

                                         III. DISCUSSION

       Although Plaintiffs assert five causes of action against Defendants in this action, there are

only two core legal questions raised by Plaintiffs’ Complaint. First, did USCIS violate the

Portability Provision in 8 U.S.C. § 1154(j) by determining that ERP’s withdrawal of its I-140

petition after Plaintiffs’ I-485 applications had been pending for 180 days made Plaintiffs

ineligible to their adjust status? Second, did USCIS violate the Administrative Procedure Act by

departing from its own written policy guidelines requiring the agency to determine whether an I-

140 petition was approvable when filed, and if so, to approve it? As explained below, the Court

finds that the answer to the first question is “no” and the answer to the second question is

“maybe.”

       Before reviewing the merits of Plaintiffs’ claims, however, the Court must address

several threshold arguments raised by Defendants in their motion to dismiss. First, Defendants

argue that Mr. Ravulapalli lacks standing as a beneficiary of the I-140 petition to seek review of

USCIS’s actions in acknowledging the withdrawal of that petition. See, e.g., George v.

Napolitano, 693 F. Supp. 2d 125, 130 (D.D.C. 2010) (“In an action seeking review of denial of

an I-140 Petition, the prospective employer, and not the alien, is the proper party.”). However,

Defendants’ standing argument misconstrues the nature of the claims Plaintiffs are asserting.


                                                    12
Plaintiffs are not challenging the withdrawal of the I-140 petition or USCIS’s acknowledgment

of that withdrawal. Instead, they are arguing that the withdrawal of the petition was legally

irrelevant because it occurred after their I-485 applications had been pending for 180 days, and

therefore Defendants were required—either by law or their own preexisting policies—to

determine whether the I-140 petition was approvable, and if so, to approve it. Therefore,

Plaintiffs are challenging a legal determination made by Defendants that they were ineligible to

adjust their status because of the withdrawal of the I-140 petition. Defendants do not dispute that

Plaintiffs have standing to challenge the denial of their I-485 applications. Accordingly, the

Court finds that Plaintiffs have standing to assert the claims in their Complaint, all of which

challenge the legal basis for Defendants’ denial of their I-485 applications.

       Second, Defendants argue that ERP’s withdrawal of the I-140 petition and USCIS’s

acknowledgment thereof is not a “final agency action” that is reviewable under the APA. See 5

U.S.C. § 704 (“Agency action made reviewable by statute and final agency action for which there

is no other adequate remedy in a court are subject to judicial review.”). However, Defendants’

argument again misinterprets Plaintiffs’ claims. The challenged agency action in this case is the

denial of Plaintiffs’ I-485 applications based on the determination that Mr. Ravulapalli was

ineligible to adjust status because the I-140 petition submitted on his behalf was withdrawn after

his I-485 application had been pending for 180 days. There can be no doubt that the agency took

a “final” action with respect to Plaintiffs’ I-485 applications—it denied them.

       Finally, although the parties did not raise this issue in their briefs, the Court notes that it

has jurisdiction to entertain Plaintiffs’ claims because Defendants’ denial of Plaintiffs’ I-485

applications was based on a pure question of law and not the exercise of discretion. See Mawalla


                                                  13
v. Chertoff, 468 F. Supp. 2d 177, 178 (D.D.C. 2007). Although 8 U.S.C. § 1252(a)(2)(B)2

appears to strip the federal courts of jurisdiction to review denials of applications to adjust status

under 8 U.S.C. § 1255, most federal courts have held that this provision bars only review of

discretionary decisions. See, e.g., Pinho v. Gonzales, 432 F.3d 193, 203-04 (3d Cir. 2005);

Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005) (“[W]e hold that 8 U.S.C.

§ 1252(a)(2)(B) does not strip courts of jurisdiction to review nondiscretionary decisions

regarding an alien’s eligibility for the relief specified in 8 U.S.C. § 1252(a)(2)(B)(i).”); Succar v.

Ashcroft, 394 F.3d 8, 19 (1st Cir. 2005) (“Both the Supreme Court and this court have

consistently rejected arguments that Congress has eliminated judicial review of the legal question

of the interpretation of the statute as to whether an alien is eligible for consideration of relief.”);

Iddir v. INS, 301 F.3d 492, 497-98 (7th Cir. 2002); Montero-Martinez v. Ashcroft, 277 F.3d

1137, 1141-43 (9th Cir. 2002); Mawalla, 468 F. Supp. 2d at 180-81. But see Djodeir v.

Mayorkas, 657 F. Supp. 2d 22 (D.D.C. 2009) (Leon, J.) (holding that 8 U.S.C. § 1522(a)(2)(B)(i)

precludes all judicial review of denials of relief under 8 U.S.C. § 1255). This Court is persuaded

by the weight of the authority that it has jurisdiction to hear Plaintiffs’ claims. Accordingly, it

shall consider whether Plaintiffs have stated a claim upon which relief can be granted.


        2
            This provision reads as follows:

        Notwithstanding any other provision of law (statutory or nonstatutory), . . . 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) of this title.


                                                   14
        A.       The AC21 Portability Provision Does Not Require USCIS to Determine Whether
                 an Unadjudicated, Withdrawn I-140 Petition Is Approvable

        Counts One and Four of Plaintiffs’ Complaint are both premised on Plaintiffs’ belief that

the Portability Provision of AC21, 8 U.S.C. § 1154(j), requires USCIS to treat an I-140 petition

as “valid” when it is withdrawn after an I-485 application has been pending for 180 days but

before it has been approved. Defendants argue that the Portability Provision does not require this

result because, in their view, an I-140 petition is not “valid” until it has been approved. Because

this is fundamentally a question of statutory interpretation, the Court’s analysis begins with the

text of the statute itself.

        Section 1154(j) of title 8, which is captioned, “Job flexibility for long delayed applicants

for adjustment of status to permanent residence,” provides as follows:

        A petition under subsection (a)(1)(D) [since redesignated subsection (a)(1)(F)] of this
        section for an individual whose application for adjustment of status pursuant to
        section 1255 of this title has been filed and remained unadjudicated for 180 days or
        more shall remain valid with respect to a new job if the individual changes jobs or
        employers if the new job is in the same or a similar occupational classification as the
        job for which the petition was filed.

The critical phrase in this provision is “shall remain valid,” which the statute does not define. As

the Court explained in the background section, at the time Congress enacted the Portability

Provision, it could only have applied to approved I-140 petitions because USCIS did not permit

aliens to file I-485 applications until their I-140 petitions had been approved. Therefore, there is

no doubt that when Congress enacted the statute, “shall remain valid” referred to the agency’s

approval of the I-140 petition.

        Now that USCIS regulations permit concurrent filing of I-140 petitions and I-485

applications, Plaintiffs argue that “shall remain valid” must also extend to I-140 petitions that


                                                  15
were approvable when filed but were not adjudicated within the first 180 days. In other words,

Plaintiffs argue that “valid” means “approvable when filed” rather than “approved.” This is one

possible construction of the statute, and it would certainly effectuate the purpose of increasing

job flexibility for long-delayed applicants for adjustment of status to permanent residence.

However, Plaintiffs’ construction also goes far beyond what Congress originally intended based

on the regulations in place at the time. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-

85 (1988) (“We generally presume that Congress is knowledgeable about existing law pertinent

to the legislation it enacts.”). Immediately after the Portability Provision was enacted, an alien

seeking to change jobs had to wait until his I-140 petition was approved, file an I-485

application, and then wait 180 days, meaning that if the agency took a year to approve the I-140

petition, the alien would have to wait at least a year and 180 days. Now, if the I-140 petition and

the I-485 application are filed concurrently, Plaintiffs’ construction of the Portability Provision

would cut the alien’s waiting time down to just 180 days. It is doubtful that Congress would

have intended such a significant change to result from the agency’s decision to change its

regulations to permit concurrent filing.

       Defendants argue that because an alien must have an approved I-140 petition before he is

eligible to apply for an adjustment of status to permanent residence, the Portability Provision

should not be construed to preserve the “validity” of unadjudicated petitions. This is the most

natural construction of the statute, and it preserves the meaning Congress originally prescribed.

It is also the construction that has been adopted by another judge in this district. See George v.

Napolitano, 693 F. Supp. 2d at 130-31. “In the usual circumstance, of course, a judge’s view of

the ‘better’ reading of a statute administered by an agency is not necessarily dispositive,” since an


                                                 16
agency’s interpretation of a statute it is entrusted to administer is generally accorded some

deference. Sottera, Inc. v. Food & Drug Admin., 627 F.3d 891, 903 (D.C. Cir. 2010) (Garland,

J., concurring in judgment). Defendants argue that deference to their reasonable interpretation of

the statute is required under Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S.

837 (1984). See Defs.’ Mem. at 10. However, Chevron deference is only appropriate for

statutory interpretations that Congress intended to carry the “force of law,” and positions taken in

an agency’s litigation briefs do not warrant such deference. United States v. Mead Corp., 533

U.S. 218, 229 (2001); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988). The Court

respects Defendants’ construction of the statute only to the extent it has the “power to persuade.”

Mead, 533 U.S. at 235 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). In any

event, the Court agrees that Defendants have the better construction of the statute.

       Because the Court finds that the Portability Provision preserves the validity of only those

I-140 petitions that have been approved, Defendants’ denial of Plaintiffs’ I-485 applications

based on the lack of an approved I-140 petition did not violate the statute. Accordingly, the

Court shall grant Defendants’ motion to dismiss Count One of the Complaint. The Court shall

also grant Defendants’ motion with respect to Plaintiffs’ mandamus claim to the extent it relies

on Defendants’ alleged violation of the statute.

       B.      Plaintiffs Have Stated a Claim that Defendants Acted Arbitrarily or Capriciously
               By Misapplying Their Established Policies

       Even where an agency has adopted a reasonable construction of the governing statute, the

Court “still must ensure that [the agency’s] action is not otherwise arbitrary and capricious.”

Int’l Union, United Mine Workers of Am. v. Mine Safety & Health Admin., 626 F.3d 84, 90 (D.C.



                                                   17
Cir. 2010). In Count Two of their Complaint, Plaintiffs claim that Defendants acted arbitrarily

and capriciously by failing to follow their own interpretive guidelines with respect to the

adjudication of I-140 petitions and I-485 applications. An administrative agency may be said to

have acted arbitrarily or capriciously when it disregards its established policy without adequate

explanation. See INS v. Yang, 519 U.S. 26, 32 (1996) (“Though an agency’s discretion is

unfettered at the outset, if it announces and follows—by rule or by settled course of

adjudication—a general policy by which its exercise of discretion will be governed, an irrational

departure from that policy (as opposed to an avowed alteration of it) could constitute action that

must be overturned as ‘arbitrary, capricious, [or] an abuse of discretion’”); Commc’ns Satellite

Corp. v. FCC, 836 F.2d 623, 629 (D.C. Cir. 1988) (“If, as [plaintiff] asserts, the [agency] has

departed from established policy, then we must determine whether the agency has acted pursuant

to ‘reasoned analysis indicating that prior policies and standards are being deliberately changed,

not casually ignored.’”) (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852

(D.C. Cir. 1970)); see also Morton v. Ruiz, 415 U.S. 199, 235 (1974) (“Where the rights of

individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so

even where the internal procedures are possibly more rigorous than otherwise would be

required.”).

       Here, Plaintiffs have alleged that USCIS issued binding policy guidelines that required

the agency to determine the validity of an unapproved I-140 petition that is withdrawn after an I-

485 application has been pending for 180 days. Specifically, Plaintiffs point to the guidance

issued in 2005 requiring a so-called “Yates Review” of unapproved I-140 petitions that have

been pending for 180 days. That guidance memorandum went on to state that an I-140 petition is


                                                18
“no longer valid for porting purposes when: (A) an I-140 is withdrawn before the alien’s I-485

has been pending 180 days, or (B) an I-140 is denied or revoked at any time except when it is

revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.”

This language strongly implies that if an I-140 petition is withdrawn after the alien’s I-485

application has been pending for 180 days, it should be given a “Yates Review” and evaluated to

determine if it is approvable. After all, the policy guidance requiring a “Yates Review”

effectively eliminates the distinction between petitions that have been “approved” and petitions

that are “approvable” once they have been pending for 180 days. It is unclear why Defendants

would reimpose that distinction in cases where the petition is withdrawn before it can be granted.

Defendants do not address this issue in their briefs, and there is nothing in the record before the

Court that explains the agency’s rationale. At the motion to dismiss stage, the Court must draw

all reasonable inferences in favor of Plaintiffs and assume that USCIS’s policy guidance required

it to review Mr. Ravulapalli’s I-140 petition to determine whether it was approvable, and if so, to

approve it. Without the full administrative record and further briefing from Defendants, the

Court cannot determine whether Defendants’ actions were arbitrary and capricious. However,

the Court finds that Plaintiffs have stated a claim for an APA violation, and therefore the Court

shall deny Defendants’ motion to dismiss with respect to Count Two of the Complaint.

       In Count Three of their Complaint, Plaintiffs argue that Defendants’ departure from

previously established interpretive guidance amounts to a rule change that requires the agency to

provide interested parties with notice and an opportunity to comment in accordance with the

APA. See 5 U.S.C. § 553. Defendants argue that the agency’s policies are “interpretive rules”

that are not subject to notice-and-comment requirements. See id. § 553(b) (exempting from


                                                 19
notice-and-comment procedures “interpretive rules, general statements of policy, or rules of

agency organization, procedure, or practice”). However, there is some support for Plaintiffs’

position that a change in interpretive rules must be accompanied by notice and comment. See

Transp. Workers Union of Am., AFL-CIO v. Transp. Security Admin., 492 F.3d 471, 475 (D.C.

Cir. 2007) (discussing “a line of cases holding that an agency cannot significantly change its

position, cannot flip-flop, even between two interpretive rules, without prior notice and

comment”). The parties have not addressed this issue in their briefs, and in light of the

uncertainty regarding the nature of the rules relied on by USCIS in denying Plaintiffs’ I-485

applications, the Court shall deny Defendants’ motion to dismiss Count Three and reconsider this

issue in the summary judgment context.

       C.      Plaintiffs Cannot Prevail on Their Equal Protection Claim

       In Count Five of their Complaint, Plaintiffs claim that Defendants’ disparate treatment of

aliens whose I-140 petitions are approved within 180 days and those whose I-140 petitions are

not approved within 180 days violates the equal protection guarantee implied in the Due Process

Clause of the Fifth Amendment. “In areas of social and economic policy, a statutory

classification that neither proceeds along suspect lines nor infringes fundamental constitutional

rights must be upheld against equal protection challenge if there is any reasonably conceivable

state of facts that could provide a rational basis for the classification.” FCC v. Beach Commc’ns,

Inc., 508 U.S. 307, 313 (1993). Whether or not Defendants adhered to their own policies in

denying Plaintiffs’ I-485 applications, the Court cannot conclude that there is no rational basis

for distinguishing between these two categories of applicants. As explained above, the

Portability Provision does not require USCIS to determine whether unapproved, withdrawn I-140


                                                20
petitions are valid, and the agency could have reasonably determined that adjudication of those

petitions would waste agency resources and not effectuate the purpose of the statute. Therefore,

the Court shall grant Defendants’ motion to dismiss Plaintiffs’ equal protection claim.

       D.      Defendants’ Alternative Motion to Transfer

       Defendants argue that the Court should transfer this action to the United States District

Court for the Northern District of Texas pursuant to 28 U.S.C. § 1404(a). Section 1404(a)

permits the Court to transfer a case to any other district where it might have been brought “[f]or

the convenience of the parties and witnesses, in the interest of justice.” The Court is afforded

broad discretion to decide whether transfer from one jurisdiction to another is proper under

§ 1404(a). SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154 (D.C. Cir. 1978) (quoting Norwood v.

Kirkpatrick, 349 U.S. 29, 32 (1955)). The decision to transfer is made by an “individualized,

case-by-case consideration of convenience and fairness . . . .” Van Dusen v. Barrack, 376 U.S.

612, 622 (1964). “The moving party ‘bear[s] a heavy burden of establishing that plaintiff[’s]

choice of forum is inappropriate.’” S. Utah Wilderness Alliance v. Norton, 315 F. Supp. 2d 82,

86 (D.D.C. 2004) (quoting Pain v. United Tech. Corp., 637 F.2d 775, 784 (D.C. Cir. 1980)).

       Defendants argue that a change of venue is appropriate because the Northern District of

Texas has a more substantial connection to the events at issue in this litigation and is a more

convenient forum. It is clear that this action could have been brought in the Northern District of

Texas because Defendant David L. Roark, Director of the USCIS Texas Service Center, resides

there and personnel at the Texas Service Center denied Plaintiffs’ I-485 applications. See 28

U.S.C. § 1391(e) (“A civil action in which a defendant is an officer or employee of the United

States or any agency thereof acting in his official capacity . . . may, except as otherwise provided


                                                 21
by law, be brought in any judicial district in which (1) a defendant in the action resides[ or] (2) a

substantial part of the events or omissions giving rise to the claim occurred . . . .”). Accordingly,

the only issue now before the Court is whether the relevant private and public interest factors

counsel in favor of transfer. See Greater Yellowstone Coalition v. Bosworth, 180 F. Supp. 2d

124, 127-28 (D.D.C. 2001) (discussing the factors courts should consider in weighing a transfer

under § 1404(a)).

       The Court begins by considering the private interests at stake in a transfer: (1) the

plaintiffs’ choice of forum, unless the balance of convenience is strongly in favor of the

defendants; (2) the defendants’ choice of forum; (3) whether the claim arose elsewhere; (4) the

convenience of the parties; (5) the convenience of the witnesses, but only to the extent they may

actually be unavailable for trial in one of the fora; and (6) the ease of access to sources of proof.

Greater Yellowstone Coalition, 180 F. Supp. 2d at 127. Courts generally give considerable

deference to the plaintiffs’ choice of forum. S. Utah Wilderness Alliance, 315 F. Supp. 2d at 86.

Defendant argues, however, that the Court should not give significant weight to Plaintiffs’ choice

of forum because they do not reside in this District. It is true that a plaintiff’s choice of forum is

“conferred less deference by the court when [it] is not the plaintiff’s home forum.” Shawnee

Tribe v. United States, 298 F. Supp. 2d 21, 24 (D.D.C. 2002) (citing Piper Aircraft Co. v. Reyno,

454 U.S. 235, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981)). Therefore, this factor does not weigh as

strongly against transfer and is partly balanced by Defendants’ preference for the Northern

District of Texas. The Court does note, however, that Plaintiffs reside just outside the District of

Columbia.

       The parties dispute whether Plaintiffs’ claims arose primarily in the District of Columbia


                                                  22
or in the Northern District of Texas. According to the allegations in the Complaint and the

supporting documentation, it appears that officials at the USCIS Texas Service Center denied

Plaintiffs’ I-485 applications based on policy guidance issued from USCIS headquarters in the

District of Columbia. Because Plaintiffs are challenging the application of those policies, this

factor weighs against transfer. The remainder of the private interest factors are of limited value

in this case because Plaintiffs’ claims are primarily legal in nature and likely to be based solely

on the administrative record and resolved on summary judgment. Otay Mesa Property L.P. v.

U.S. Dep’t of Interior, 584 F. Supp. 2d 122, 125 (D.D.C. 2008).

       The Court turns next to consideration of the public interest factors, including (1) the

transferee forum’s familiarity with the governing laws and the pendency of related actions in that

forum; (2) the relative congestion of the calendars of the potential transferee and transferor

courts; and (3) the local interest in deciding local controversies at home. Trout Unlimited v. U.S.

Dep’t of Agriculture, 944 F. Supp. 13, 16 (D.D.C. 1996). Because Plaintiffs’ claims involve only

federal law and there is no evidence of related actions pending in the Northern District of Texas,

the first factor does not weigh in favor of a transfer. According to recent judicial caseload

statistics, the calendar in the Northern District of Texas is slightly less congested than the

calendar in this district, so this factor weighs slightly in favor of transfer. The parties strongly

disagree about whether the Northern District of Texas has a local interest in the controversy.

Defendants argue that because the final denials were made by officials in the USCIS Texas

Service Center, the Northern District of Texas has a local interest in the case. Defendants rely

primarily on cases where the plaintiff is seeking to compel a local field office to adjudicate a

pending application after unreasonable delay. See, e.g., Al-Ahmed v. Chertoff, 564 F. Supp. 2d


                                                  23
16 (D.D.C. 2008); Abusedeh v. Chertoff, Civil Action No. 06-2014, 2007 WL 2111036 (D.D.C.

July 23, 2007). However, Plaintiffs’ claims focus primarily on the policies issued from USCIS

headquarters that apply to all USCIS field offices. Therefore, the Northern District of Texas has

no particular localized interest in this litigation. See Otay Mesa Property, 584 F. Supp. 2d at

126-27 (finding that there was no localized interest justifying transfer because plaintiffs

challenged a national policy that had no direct or unique impact on transferee forum).

        Considering the private and public interest factors together, the Court finds that they do

not, taken as a whole, weigh in favor of transfer to the Northern District of Texas. Because

Defendants have failed to demonstrate that a transfer would be in the interest of justice for the

convenience of the parties and witnesses, the Court shall deny Defendants’ alternative motion to

transfer.

                                        IV. CONCLUSION

        For the foregoing reasons, the Court shall GRANT-IN-PART Defendants’ [8] Motion to

Dismiss with respect to Counts One, Four, and Five of the Complaint and DENY-IN-PART the

motion with respect to Counts Two and Three of the Complaint. The Court finds that the

Portability Provision did not require Defendants to review the I-140 petition filed by ERP once it

was withdrawn after Plaintiffs’ I-485 applications had been pending for 180 days. The Court

also finds that Plaintiffs have failed to assert a viable constitutional claim under the Fifth

Amendment’s Due Process Clause. However, the Court finds that Plaintiffs have stated a claim

for violation of the APA based on Defendants’ alleged departure from their own policy

guidelines and failure to follow notice-and-comment procedures. The Court also finds that a

transfer to the Northern District of Texas is not in the interest of justice, and therefore the Court


                                                  24
shall DENY Defendants’ Alternative Motion to Transfer. An appropriate Order accompanies

this Memorandum Opinion.




Date: March 29, 2011
                                                      /s/
                                                 COLLEEN KOLLAR-KOTELLY
                                                 United States District Judge




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