                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

SAMER ABDULRAZZAQ MOHAMMED,                       :
et al.,                                           :
                                                  :
       Plaintiffs,                                :       Civil Action No.:       17-cv-2660 (RC)
                                                  :
       v.                                         :       Re Document No.:        11
                                                  :
JEFFERSON B. SESSIONS, III, et al.,               :
                                                  :
       Defendants.                                :

                                  MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

                                      I. INTRODUCTION

       Plaintiffs Samer Abdulrazzaq Mohammed and his family have brought this lawsuit under

the Administrative Procedure Act, 5 U.S.C. § 701 et seq., to challenge the denial of their

application for refugee resettlement in the United States under Section 207 of the Immigration

and Naturalization Act, 8 U.S.C. § 1157. Defendants now move to dismiss for lack of subject

matter jurisdiction and failure to state a claim, arguing that the claims are non-justiciable and

barred by longstanding principles of nonreviewability of visa denials. Because it lacks

jurisdiction to review discretionary denials of refugee resettlement applications, the Court grants

the motion to dismiss.

                                       II. BACKGROUND

       Plaintiff Samer Abdulrazzaq Mohammed (“Mohammed”) is an Iraqi national who lives

in Baghdad with the four other plaintiffs in this case, his wife Hanan Hasan Salih and his three

sons Mohammed Samer Abdulrazzaq, Ali Samer Abdulrazzaq, and Husain Samer Abdulrazzaq.

See 2014 Request for Review Supporting Docs., Compl. Ex. 3, at 10–14, ECF No. 1-3; 2017
Marwa Samer Abdulrazzaq Letter, Compl. Ex. 7, at 1, ECF No. 1-7; 2017 Request for Review,

Compl. Ex. 8, at 2, ECF No. 1-8. Mohammed is an engineer by profession. See 2014 Request

for Review, Compl. Ex. 2, at 1, ECF No. 1-2. Between 2004 and 2009, Mohammed worked as a

subcontractor on a number of projects in the International Zone in Baghdad, including at the

United States Embassy. Id. at 2. As a result of his work in the International Zone, Mohammed

was targeted for reprisals and forced to relocate multiple times between 2006 and 2009,

including moving to Syria for two years between 2006 and 2008 after armed militia ransacked

his home and threatened his family’s life in July 2006. See id. at 2–4.

       In 2009, Mohammed and his family applied for refugee resettlement in the United States

through the U.S. Refugee Admissions Program. Id. at 1. Under Section § 207 of the

Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1157, the admission of refugees is

committed to the discretion of the Secretary of the Department of Homeland Security. See 8

U.S.C. § 1157(c)(1); 6 U.S.C. § 557. On July 9, 2014, the U.S. Citizenship and Immigration

Services (“USCIS”) issued Mohammed a notice of ineligibility for resettlement. Notice of

Ineligibility, Compl. Ex. 1, at 1, ECF No. 1-1. The notice explained that Mohammed and his

family’s application for refugee resettlement under § 207 of the INA had “been denied as a

matter of discretion for security-related reasons.” Id. at 2.

       The same month, Mohammed filed a request for review of the denial, attaching a number

of documents in support. Compl. at 5; see generally 2014 Request for Review; 2014 Request for

Review Supporting Docs. While there is no formal mechanism for review of refugee

resettlement applications, see 8 U.S.C. § 1157; 8 C.F.R. § 207.4 (“There is no appeal from a

denial of refugee status under this chapter”), USCIS considers informal requests for review of

such denials in its discretion, see Defs.’ Mem. Supp. Mot. Dismiss 3, ECF No. 11. In this case,




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USCIS responded to the request for review in June 2015, upholding the denial because the

request for review “did not contain any new information or an allegation of error in the

adjudication of [Mohammed’s] claim.” June 11, 2015 Request for Review Response, Compl.

Ex. 4, at 1, ECF No. 1-4. Mohammed filed a renewed request for review in August 2015, which

was denied in February 2017. 2017 Request for Review at 1. And finally, Mohammed

submitted a final request for review in April 2017, Compl. at 6; 2017 Request for Review, which

was denied by USCIS in September 2017, Compl. at 6.

       On December 12, 2017, Mohammed and his family brought suit against various U.S.

government officials, alleging that the denial of the family’s refugee resettlement application was

an arbitrary and capricious decision in violation of the Administrative Procedure Act (“APA”).

Compl. at 2–3. On June 15, 2018, Defendants moved to dismiss for lack of subject matter

jurisdiction and failure to state a claim. See Defs.’ Mot. Dismiss at 1, ECF No. 11. Plaintiffs

filed their opposition on August 6, 2018, Pls.’ Mem. Opp’n Mot. Dismiss at 1, ECF No. 14, and

Defendants filed their reply on August 17, 2018, Defs.’ Reply at 1, ECF No. 16. The motion to

dismiss is now ripe for consideration.

                                    III. LEGAL STANDARD

       Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action for lack

of subject matter jurisdiction. Federal courts are courts of limited jurisdiction, and it is generally

presumed that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins.

Co. of Am., 511 U.S. 375, 377 (1994). Accordingly, it is imperative that this Court “begin, and

end,” with an examination of its jurisdiction. Gen. Motors Corp. v. EPA, 363 F.3d 442, 448

(D.C. Cir. 2004).




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       It is the plaintiff’s burden to establish that the court has subject matter jurisdiction over

his or her claims. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). In determining whether

the plaintiff has met this burden, a court must accept “the allegations of the complaint as true,”

Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015), and “construe the

complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from

the facts alleged[,]” Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (internal quotation

marks omitted). However, “the 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.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14

(D.D.C. 2001).

                                          IV. ANALYSIS

       Plaintiffs challenge the discretionary denial of their refugee resettlement application

pursuant to 8 U.S.C. § 1157(c)(1). They bring this challenge under § 702 of the APA, arguing

that the denial caused a legal wrong that entitles them to judicial review. Compl. at 3 (citing 5

U.S.C. § 702). Defendants argue that the Court does not have jurisdiction over Plaintiffs’ APA

claims because the INA expressly divested courts of jurisdiction over discretionary decisions like

refugee resettlement denials. Defs.’ Mem. Supp. at 6. The Court agrees with Defendants, and

accordingly grants the motion to dismiss.

       “The APA confers a general cause of action upon persons ‘adversely affected or

aggrieved by agency action within the meaning of a relevant statute.’” Block v. Cmty. Nutrition

Inst., 467 U.S. 340, 345 (1984) (quoting 5 U.S.C. § 702). However, the APA “withdraws that

cause of action to the extent the relevant statute ‘preclude[s] judicial review.’” Id. (alteration in

original) (quoting 5 U.S.C. § 701(a)(1)). And the INA includes such a restriction on judicial




                                                  4
review: it provides that “any . . . decision or action of . . . the Secretary of Homeland Security the

authority for which is specified . . . to be in the discretion of the . . . . Secretary of Homeland

Security” is not subject to judicial review by federal courts. 8 U.S.C. § 1252(a)(2)(B)(ii).

Section 1252 only includes a limited exception for review of constitutional claims or questions of

law brought in a petition for review of a final removal order in a court of appeals. Id.

§ 1252(a)(2)(D).

        The section of the INA pursuant to which Plaintiffs submitted their refugee resettlement

application provides that the Secretary of Homeland Security “may, in the [Secretary’s]

discretion and pursuant to such regulation as the [Secretary] may prescribe, admit any refugee

who is not firmly resettled in any foreign country, is determined to be of special humanitarian

concern to the United States, and is admissible . . . as an immigrant.” 8 U.S.C. § 1157(c)(1). 1

Defendants accordingly argue that the jurisdiction-stripping provisions of § 1252(a)(2)(B)(ii)

foreclose any judicial review of Plaintiffs’ claims, when Mohammed and his family are not

petitioning for review of a final removal order before a court of appeals. See Defs.’ Mem. Supp.

at 6 & n.3. Defendants point out that the Supreme Court has specifically identified refugee

admission decisions as a type of “decision[] specified by statute to be in the discretion of the

attorney General, and therefore shielded from court oversight by § 1252(a)(2)(B)(ii).” Id. at 6

(quoting Kucana v. Holder, 558 U.S. 233, 248 (2010)). The Court agrees.

        Plaintiffs argue that the claims are reviewable because the fact that “the Secretary of

Homeland Security has the ultimate discretionary authority to issue a decision in particular cases,


        1
        The text of 8 U.S.C. § 1157 leaves the admission of refugees to the discretion of the
Attorney General. However, authority over refugee admission was transferred to the Secretary
of Homeland Security after the passage of the Homeland Security Act of 2002. See Pub. L. No.
107-296, §§ 451, 1517, 116 Stat. 2135, 2196, 2311 (codified as amended at 6 U.S.C. §§ 271,
557).


                                                   5
does not mean that every determination is discretionary, and hence not subject to review.” Pls.’

Mem. Opp’n at 6 (citing Mejia Rodriguez v. Dep’t of Homeland Sec., 562 F.3d 1137 (11th Cir.

2009)). Plaintiffs contend that absent additional language rendering the Secretary of Homeland

Security’s determination fully within her discretion, a grant of authority to the Secretary to make

a determination is not “specified to be in [her] discretion” under § 1252(a)(2)(B)(ii) and is thus

reviewable by Courts. Id. (citing Alaka v. Attorney General, 456 F.3d 88, 95–96 (3d Cir. 2006);

Nethagani v. Mukasey, 532 F.3d 150, 154–55 (2d Cir. 2008)). Separately, Plaintiffs also argue

that the APA provides for the review of agency actions that are arbitrary, capricious, or an abuse

of discretion. Id. at 7 (citing 5 U.S.C. § 706(2)(A)). Plaintiffs’ arguments are unavailing.

       Plaintiffs are undoubtedly correct that a statutory grant of authority to the Secretary of

Homeland Security to make a determination in the INA is not alone enough for that

determination to be “specified . . . to be in [her] discretion,” 8 U.S.C. § 1252(a)(2)(B)(ii), and

thus unreviewable. Courts reviewing claims alleged to be foreclosed by § 1252(a)(2)(B)(ii) have

generally found that “the provision only applies to the ‘narrower category of decisions where

Congress has taken the additional step to specify that the sole authority for the action is in the

[Secretary]’s discretion.’” Liu v. Novak, 509 F. Supp. 2d 1, 7 (D.D.C. 2007) (quoting Alaka, 456

F.3d at 95).

       Courts have thus refused to apply the jurisdictional bar in two sets of circumstances.

First, courts have entertained claims under sections of the INA that do not expressly provide for

agency discretion. See, e.g., Alaka, 456 F.3d at 101–02 (finding that grant of authority to

“decide” and “determin[e]” whether alien should benefit from withholding of removal under 8

U.S.C. § 1231(b)(3) did not specify discretion to the Attorney General, and thus that decision to

deny withholding of removal was not unreviewable under § 1252(a)(2)(B)(ii)). And second,




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even when a section of the INA provides that the ultimate decision is in the executive’s

discretion, courts have considered claims relating to statutory eligibility for relief, which is often

a precursor for the ultimate discretionary decision. See, e.g., Mejia Rodriguez, 562 F.3d at 1143–

44 (noting that while ultimate decision to grant temporary protected status was discretionary,

“the director of USCIS is required to make many decisions based on his legal interpretation of an

alien’s statutory eligibility . . . before exercising his discretionary authority,” and review of those

statutory eligibility decisions was not precluded by § 1252(a)(2)(B)(ii)).

       However, neither circumstance is at issue here. § 1157(c)(1) leaves the admissibility of

refugees to “the [Secretary of Homeland Security’s] discretion.” 8 U.S.C. § 1157(c)(1). Courts

to have reviewed the issue have also indicated that Congress expressly provided for agency

discretion in § 1157(c)(1). See, e.g., Kucana v. Holder, 558 U.S. 233, 248 (2010) (pointing to

§ 1157(c)(1) as an example of a “decision[] specified by statute ‘to be in the discretion of the

Attorney General,’ and therefore shielded from court oversight” (quoting 8 U.S.C.

§ 1252(a)(2)(B)(ii))); Bernardo ex rel. M & K Eng’g, Inc. v. Johnson, 814 F.3d 481, 501 (1st Cir.

2016) (Lipez, J., dissenting) (same); Alaka, 456 F.3d at 97 n.17; Doe v. Trump, 288 F. Supp. 3d

1045, 1071 (W.D. Wash. 2017) (same). As Defendants note, Defs.’ Reply at 2, and as

recognized by these courts, the language of § 1157(c)(1) clearly invokes the jurisdiction-

stripping provision of § 1252(a)(2)(B)(ii).

       And this case is not one where Plaintiffs ask for review of a statutory eligibility

determination or of another non-discretionary decision, as the plaintiff did in Mejia Rodriguez.

Neither are Plaintiffs challenging the government’s failure to act. Cf. Doe, 288 F. Supp. 3d at

1071–72 (contrasting plaintiffs’ claims that the Secretary of Homeland Security “fail[ed] to act

on refugee applications” with circumstances where a plaintiff would “challeng[e] a denial of




                                                   7
refugee admission,” and noting that pursuant to § 1157(c)(1), “the Secretary may have discretion

over what the decision will be, but not over whether a decision will be made”). Here, Plaintiffs

ask this Court to reverse “the wrongful denial of [their] Applications for Refugee Resettlement in

the U.S. ‘as a matter of discretion for security related reasons.’” Compl. at 2–3 (quoting Notice

of Ineligibility at 2). They specifically request that this Court “[o]rder Defendants to reopen and

approve Plaintiffs’ Applications and issue the corresponding visas to . . . Plaintiffs.” Id. at 7–8.

The jurisdiction-stripping provision of § 1252(a)(2)(B)(ii) bars the review of that discretionary

decision.

       Finally, the APA’s section providing for reviewability of agency action that is arbitrary,

capricious, or contrary to law cannot save Plaintiffs’ claims. Plaintiffs argue that “Defendants’

argument that the Court lacks jurisdiction . . . ignores the issue of a decision found to be arbitrary

and capricious, and an abuse of agency discretion” pursuant to 5 U.S.C. 706(2)(A). Pls.’ Mem.

Opp’n at 5. But § 706(2)(A) only applies if the Court has subject matter jurisdiction to consider

Plaintiffs’ APA claims. As discussed above, because 5 U.S.C. § 701 provides that the APA does

not apply when a statute otherwise precludes jurisdiction, and because the INA does preclude

review of refugee resettlement denials, the Court does not have subject matter jurisdiction under

the APA and thus cannot consider Plaintiffs’ arguments under § 706(2)(A).

                                        V. CONCLUSION

       For the foregoing reasons, Defendants’ motion to dismiss (ECF No. 11) is GRANTED,

and this case is DISMISSED. An order consistent with this Memorandum Opinion is separately

and contemporaneously issued.


Dated: January 16, 2019                                             RUDOLPH CONTRERAS
                                                                    United States District Judge




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