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Maria and Paul Volynsky v. Hillary Clinton

January 31, 2011

MARIA AND PAUL VOLYNSKY
v.
HILLARY CLINTON, ET AL.



The opinion of the court was delivered by: Padova, J.

MEMORANDUM

Plaintiffs Maria and Paul Volynsky, husband and wife, have sued Secretary of State Hillary Clinton, Attorney General Eric Holder, Secretary of Homeland Security Janet Napolitano, and Citizenship and Immigration Services Director Alejandro Mayorkas (collectively, "the Government") alleging that the denial of Maria Volynsky's Application for Waiver of the Foreign Residence Requirement violated the Administrative Procedures Act ("APA"), 5 U.S.C. § 551 et seq., the Mandamus Act, 28 U.S.C. § 1361, and the Due Process Clause of the Fifth Amendment, U.S. Const. amend. V. The Government filed a Motion to Dismiss on November 16, 2010, seeking dismissal of the Complaint in its entirety. For the reasons that follow, we grant the Motion in part and deny it in part.

I. BACKGROUND

The Complaint alleges the following facts. Maria Volynsky ("Volynsky") is a citizen of Russia, and Paul Volynsky ("Mr. Volynsky") is a citizen of the United States. (Compl. ¶ 1.) Volynsky entered the United States on August 14, 2005, on a J-1 visa to participate in an exchange program as a Fullbright scholar at Grinnell College in Iowa. (Id. ¶ 13.) The terms of her visa provided that, upon its expiration, she was required to return to the country of her nationality or of her last residence for two years before she could apply for an immigrant visa or an adjustment of status. (Id.) On December 23, 2005, Plaintiffs married. (Id.) On February 16, 2006, Volynsky filed an Application for an Adjustment of Status ("Adjustment of Status Application") with the United States Citizenship and Immigration Services ("CIS"). (Id. ¶ 13 & Ex. 4.) On February 25, 2006, Volynsky filed an Application for Waiver of the Foreign Residence Requirement ("Waiver Application"). (Id. ¶ 13.) In her Waiver Application, Volynsky argued that completion of the two-year term of foreign residence would result in exceptional hardship to her husband. (Id.) On April 7, 2006, Mr. Volynsky filed an Application for Alien Relative on behalf of his wife. (Id.)

On September 13, 2006, CIS approved Mr. Volynsky's Application for Alien Relative and denied Volynsky's Adjustment of Status Application. (Id. unnumbered ¶ following ¶ 13.) The reason provided for the denial of her Adjustment of Status Application was Volynsky's failure to obtain a waiver of the foreign residence requirement at the time of the adjudication. (Id.) On February 27, 2007, Volynsky re-filed her Adjustment of Status Application. (Id.)

On October 29, 2008, having determined that Volynsky's compliance with the foreign residence requirement would impose an extreme hardship on her husband, CIS sent the Waiver Application to the State Department along with a request for a recommendation.*fn1 (Compl. Ex. 9.) On December 30, 2008, the State Department issued its recommendation, in which it agreed that Volynsky's compliance with the foreign residence requirement would cause exceptional hardship to her husband but nonetheless recommended that her Waiver Application be denied. (Id. second unnumbered ¶ following ¶ 13.) On June 26, 2009, CIS denied the Waiver Application, stating that, absent a favorable recommendation from the State Department, CIS was precluded from approving the Waiver Application. (Id.) Volynsky remains in the United States, and Plaintiffs now have two minor children who are United States citizens. (Id. ¶ 27.)

The Complaint asserts three causes of action. In Count One, Plaintiffs allege that the State Department's denial of Volynsky's Waiver Application violated the Administrative Procedures Act ("APA"), 5 U.S.C. § 702, because the denial was arbitrary, capricious and contrary to law.*fn2 In Count Two, Plaintiffs allege that the State Department's denial of Maria Volynsky's Waiver Application violated the Mandamus Act, 28 U.S.C. § 1361, because the failures of the State Department to specify reasons for the denial and to conduct a public interest analysis were arbitrary and capricious violations of a statutory requirement that the State Department adjudicate her application. In Count Three, Plaintiffs allege that the State Department's denial of Maria Volynsky's Waiver Application violated the Due Process Clause of the Fifth Amendment, U.S. Const. amend. V, because the State Department neglected a duty to grant the waiver unless the public interest speaks to the contrary.

The Government has moved to dismiss all of Plaintiffs' claims on the grounds that this Court lacks subject matter jurisdiction over Count I and that Plaintiffs have failed to state a claim upon which relief may be granted in all Counts.

II. LEGAL STANDARD

A motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may challenge the court's jurisdiction on either "factual" or "facial" grounds. Turicentro, S.A. v. American Airlines Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002). Where, as here, a defendant argues that "the court in fact lacks subject matter jurisdiction," the court is not required to accept as true the Complaint's allegations, NE Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 341 & n.7 (3d Cir. 2001), and must instead "satisfy itself as to the existence of its power to hear the case." Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). The plaintiff bears the burden of showing that jurisdiction exists. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).

When considering a motion to dismiss pursuant to the Federal Rules of Civil Procedure 12(b)(6), we look primarily at the facts alleged in the complaint and its attachments. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citation omitted). We take the factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002)). Legal conclusions, however, receive no deference, and the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986) (cited with approval in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

A plaintiff's pleading obligation is to set forth "a short and plain statement of the claim," Fed.R. Civ. P. 8(a)(2), which gives the defendant "fair notice of what the . . . claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (quotation omitted). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). In the end, we will dismiss a complaint if the factual allegations in the complaint are not sufficient "to raise a right to relief above the speculative level." Twombly, 550 ...


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