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Maria and Paul Volynsky v. Hillary Clinton

June 21, 2012

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 filed an Amended Complaint against 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"), challenging the denial of Maria Volynksy's Application for Waiver of the Foreign Residence Requirement, pursuant to the Administrative Procedures Act, 5 U.S.C. § 702 (the "APA"), the Mandamus Act, 28 U.S.C. § 1361, and the Due Process Clause of the Fifth Amendment to the United States Constitution. The Government has filed a Motion to Dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Government's Motion is granted and the Amended Complaint is dismissed.

I. BACKGROUND

Maria Volynsky ("Volynsky") is a citizen of Russia, and Paul Volynsky is a citizen of the United States. (Am. Compl. ¶ 2.) Volynsky entered the United States on August 14, 2005, on a J-1 visa to participate in an exchange program as a Fulbright scholar at Grinnell College in Iowa. (Id. ¶ 13.) The terms of her visa provided that, upon its expiration, she was required to return to Russia for two years before she could apply for an immigrant visa or an adjustment of status. (Id.) The Volnyskys married on December 23, 2005. (Id.) On April 5, 2006, Volynsky filed an Application for an Adjustment of Status with the United States Citizenship and Immigration Services ("CIS").

(Id. ¶ 14 & Ex. 5.) On March 8, 2006, Volynsky filed an Application for Waiver of the Foreign Residence Requirement (the "Waiver Application"). (Id. ¶ 14 & Ex. 6.) In her Waiver Application, Volynsky stated that completion of the two-year term of foreign residence would result in exceptional hardship to her husband. (Id. ¶ 14.)

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's Waiver Review Division*fn1 along with a request for a recommendation.*fn2 (Id. Ex. 9.) On December 30, 2008, the Waiver Review Division issued its recommendation, and recommended that her Waiver Application be denied. (Id. ¶ 16.) 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. ¶ 16 & Ex. 10.)

Plaintiffs then brought suit in this Court, challenging the Waiver Review Division's recommendation that Volynsky's application be denied and the subsequent denial of the application by CIS. See Volynsky v. Clinton, 778 F. Supp. 2d 545, 549 (E.D. Pa. 2011). In the original complaint, Plaintiffs alleged that the recommendation and CIS's denial of Volynsky's Waiver Application violated the APA because the denial was arbitrary, capricious and contrary to law; that the denial violated the Mandamus Act because the failure to specify reasons for the recommendation violated statutory requirements; and that the denial violated the Due Process Clause of the Fifth Amendment because the State Department "neglected a duty to grant the waiver unless the public interest speaks to the contrary." Id. The Government moved to dismiss all three claims pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6), arguing in part that the agency action at issue was unreviewable because it involved a purely discretionary decision. Id.

We granted in part and denied in part the Government's motion to dismiss. Noting that while the APA precludes judicial review of agency actions committed to agency discretion by law, an agency can limit its discretion and "give rise to judicial review" by articulating factors that it must consider when exercising its discretion. Id. at 551 (citations omitted). In this case, the Waiver Review Division had a duty to "'review the policy, program, and foreign relations aspects of the case [(the "regulatory factors")].'" Id. (quoting 22 C.F.R. § 41.63(b)(2)(ii)). Consequently, we had subject matter jurisdiction to review only whether the Waiver Review Division abused its discretion in its "'review [of] the policy, program, and foreign relations aspects of the case.'" Id. at 552 (quoting 22 C.F.R. § 41.63(b)(2)(ii) and citing Chong v. Dir., U.S. Info. Agency, 821 F.2d 171, 176 (3d Cir. 1987)). We determined that Plaintiffs had plausibly alleged that the Waiver Review Division had failed to review the regulatory factors, as its recommendation contained no indication that those factors had been reviewed. Id. at 552-53. Accordingly, we concluded that Plaintiffs had stated a claim under the APA, but only as to whether the Waiver Review Division reviewed the regulatory factors. Id. We also concluded that Plaintiffs had stated a claim under the Mandamus Act claim, but only as to whether the State Department failed to fulfill its duty to review the regulatory factors. Id. at 553-55. We dismissed Plaintiffs' Mandamus Act claim to the extent it alleged that the Waiver Review Division had a duty to make a favorable recommendation under the circumstances and a duty to explain its recommendation.*fn3 Id. Finally, we dismissed Plaintiffs' due process claim, holding that Plaintiffs did not have a liberty or property interest in the waiver of the foreign residency requirement and, consequently, could not state a claim upon which relief could be granted for violation of their due process rights. Id. at 555.

Following our January 31, 2011 decision, CIS re-opened Volynsky's waiver application, and invited Volynsky to supplement her original application. (Joint Stipulation, Docket No. 21.) The Waiver Review Division again recommended that the waiver application be denied (the "Recommendation"). (Am. Compl. Ex. 15.) The Recommendation explicitly states that the Waiver Review Division reviewed the regulatory factors and determined that the factors outweigh Plaintiffs' hardship. (Id.) The Recommendation contains a paragraph-length discussion of each regulatory factor and why that factor weighs in favor of denying the Waiver Application. (Id.)*fn4 The Recommendation also states that the Waiver Review Division has considered all evidence Volynsky submitted in support of her exceptional hardship waiver application. (Id.) CIS denied Volynsky's waiver application based upon the Recommendation. (Id. ¶ 21.)

Plaintiffs filed their Amended Complaint after CIS denied the waiver application for the second time. The Amended Complaint raises the same claims raised in the original complaint: that the State Department's Recommendation and CIS's subsequent denial violated the APA, the Mandamus Act, and Plaintiffs' Fifth Amendment due process rights.

The Government filed a Motion to Dismiss for failure to state a claim upon which relief can be granted, arguing that the Amended Complaint should be dismissed in its entirety because our scope of review is limited to a determination of whether the Waiver Review Division reviewed the regulatory factors and that it is clear, from the Amended Complaint and its exhibits, that the Waiver Review Division did so.

II. LEGAL STANDARD

When considering a motion to dismiss pursuant to Rule 12(b)(6), we "consider only the complaint, exhibits attached to the complaint, [and] matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents." Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). We take the factual allegations of the complaint as true and draw all reasonable inferences in favor of the plaintiff. Phillips v. Cnty. 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 (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 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, 556 U.S. 662, 678 (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. (citing Twombly, 550 U.S. at 556). In the end, we will dismiss a complaint if the factual allegations in the complaint are not ...


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