Mehta et al v. US Department of State et al, No. 2:2015cv01543 - Document 32 (W.D. Wash. 2016)
Court Description: ORDER granting defendants' 27 Motion to Dismiss by Judge Ricardo S Martinez.(RS)
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Mehta et al v. US Department of State et al Doc. 32 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 CHINTAN MEHTA, et al., Plaintiffs, 10 13 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS v. 11 12 Case No. 15-1543RSM UNITED STATES DEPARTMENT OF STATE, et al., 14 Defendants. 15 I. 16 17 18 INTRODUCTION This matter comes before the Court on Defendants United States Department of State, et al. (collectively, “State Department”)’s Motion to Dismiss pursuant to FRCP 12(b)(1) and 19 12(b)(6), Dkt. #27. The State Department argues inter alia, that the Court lacks jurisdiction 20 21 under the Administrative Procedure Act (“APA”) to review Defendants’ revision to a visa 22 bulletin as this revision does not constitute “final agency action.” Id. at 2. Plaintiffs oppose 23 this Motion and argue that the bulletin revision does constitute final agency action. See Dkt. 24 #30. For the reasons set forth below, the Court agrees with Defendants and GRANTS their 25 26 Motion. 27 28 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 1 Dockets.Justia.com II. 1 BACKGROUND1 2 Plaintiffs and potential class members are “the beneficiaries of approved employment- 3 based visa petitions for highly skilled workers.” Dkt. #22-1 at 2. On September 9, 2015, the 4 State Department published a monthly “Visa Bulletin” with “a date on which applicants may 5 6 submit adjustment of status applications… that comes before the projected date on which final 7 adjudicative action will occur.” Id. at 3. Plaintiffs allege that they then spent significant time 8 and money assembling adjustment applications “based on their reasonable expectation— 9 created by over five decades of uniform practice—that the government would abide by the Visa 10 Bulletin it published on September 9, 2015.” Id. On September 25, 2015, the State 11 12 Department published another, revised Visa Bulletin withdrawing and changing the date on 13 which applicants may submit adjustment of status applications. Id. Plaintiffs brought this 14 lawsuit on September 28, 2015, and amended their Complaint on September 30, 2015, and 15 January 15, 2016. Dkt. ##1; 6; 22-1. 16 III. DISCUSSION 17 A. Legal Standard 18 19 Under Federal Rule of Civil Procedure 12(b)(1), a defendant may challenge the 20 plaintiff’s jurisdictional allegations in one of two ways: (1) a “facial” attack that accepts the 21 truth of the plaintiff’s allegations but asserts that they are insufficient on their face to invoke 22 federal jurisdiction, or (2) a “factual” attack that contests the truth of the plaintiff’s factual 23 24 allegations, usually by introducing evidence outside the pleadings. Leite v. Crane Co., 749 25 F.3d 1117, 1121-22 (9th Cir. 2014). When a party raises a facial attack, the court resolves the 26 motion as it would under Rule 12(b)(6), accepting all reasonable inferences in the plaintiff’s 27 favor and determining whether the allegations are sufficient as a legal matter to invoke the 28 1 The following background facts are taken from Plaintiffs’ Second Amended Complaint, Dkt. #22-1, and accepted as true for purposes of ruling on this Motion to Dismiss. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 2 1 court’s jurisdiction. Id. at 1122. In making a Rule 12(b)(6) assessment, the court accepts all 2 facts alleged in the complaint as true, and makes all inferences in the light most favorable to the 3 non-moving party. 4 Baker v. Riverside County Office of Educ., 584 F.3d 821, 824 (9th Cir. 2009) (internal citations omitted). However, the court is not required to accept as true a “legal 5 6 conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 7 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint “must contain 8 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 9 Id. at 678. This requirement is met when the plaintiff “pleads factual content that allows the 10 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 11 12 Id. The complaint need not include detailed allegations, but it must have “more than labels and 13 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 14 Twombly, 550 U.S. at 555. Absent facial plausibility, a plaintiff’s claims must be dismissed. 15 Id. at 570. 16 B. Immigration System at Issue2 17 18 Basic Framework 19 Plaintiffs contend they were denied access to immigrant visas that allow noncitizens to 20 be admitted as Lawful Permanent Residents (“LPRs”) through an adjustment of immigration 21 status. These immigrant visas have several advantages over non-immigrant visas, e.g. allowing 22 LPRs to live in the U.S. longer, work, and travel internationally with fewer restrictions. See 23 24 generally 8 U.S.C. §§ 1101(a)(16), 1101(a)(20), 1255. Obtaining LPR status may be a 25 significant step toward U.S. citizenship. See 8 U.S.C. § 1427(a). 26 27 28 2 The following section contains statements of law and facts. To the extent that any statement may be factual in nature, it is taken from Plaintiffs’ Second Amended Complaint, Dkt. #22-1, and accepted as true for purposes of ruling on this Motion to Dismiss. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 3 1 This case specifically concerns employment-based immigrant visas. A noncitizen who 2 wants to obtain such a visa must normally go through an employer, who submits various forms 3 to different branches of the U.S. Government. First, the employer generally must file an 4 application for a labor certification with the Department of Labor (“DOL”). See 8 U.S.C. § 5 6 1182(a)(5)(A). The DOL is asked to certify that: (1) there are insufficient U.S. workers able, 7 willing, qualified, and available for the particular job; and (2) employment of the individual 8 will not adversely affect the wages and working conditions of similarly employed U.S. 9 workers. 8 U.S.C. § 1182(a)(5)(A)(i). The approved labor certification establishes, among 10 other things, the wage that the employer must pay the worker. See 8 U.S.C. § 1182(p); 20 11 12 C.F.R. § 656.40. The date DOL accepts the application serves as the employee’s “priority 13 date,” which functions as the employee’s place in line for an immigrant visa number. 8 C.F.R. 14 § 204.5(d). 15 The employer then files an I-140 visa petition with the U.S. Citizenship and 16 Immigration Service (“USCIS”). 8 U.S.C. § 1154(a)(1)(F). In the Form I-140 petition, the 17 18 employer requests that the employee be classified under one of the employment-based 19 immigrant visa preference categories based on the employee’s skills, experience, and/or 20 education. 8 U.S.C. § 1153(b). Once USCIS approves a visa petition, those living in the 21 United States under a current visa status may gain LPR status only if an immigrant visa is 22 “immediately available.” 8 U.S.C. § 1255. 23 24 The Immigration and Nationality Act (“INA”) defines employment-based immigrant 25 visa classifications and sets forth numerical limitations, both worldwide and per country. 8 26 U.S.C. §§ 1151, 1153(b), 1154(b). The INA generally caps the annual number of employment- 27 based immigrant visas at 140,000, of which 40,040 generally are available to individuals 28 applying under the employment-based second preference (EB-2) classification. 8 U.S.C. §§ ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 4 1 1151(d), 1153(b). The INA further limits the number of employment-based immigrant visa 2 numbers that generally may go to nationals of any one country during a fiscal year to 7% 3 (known as the “per-country limitation”). 8 U.S.C. § 1152(a)(2). The State Department is 4 responsible for administering the provisions of the INA relating to numerical limitations on 5 6 immigrant visa issuances, including managing the individual allotment of employment-based 7 immigrant visas. 8 U.S.C. § 1153(g). The State Department allocates visa numbers for use in 8 connection with the issuance of immigrant visas based on reports from consular officers and 9 reports about applications for adjustment of status reported provided by officers of DHS. 22 10 C.F.R. § 42.51. When demand for immigrant visa numbers outpaces the statutorily allotted 11 12 supply in a particular preference category or country, the State Department considers the 13 category or country “oversubscribed” and imposes a cut-off date to keep the allocation of visas 14 within the statutory limits for each fiscal year. Those who applied after the cut-off date go into 15 a visa queue. The State Department divides applicants in the visa queue by preference category 16 and, if the applicant’s native country has exceeded the INA’s per-country cap, foreign state 17 18 chargeability. 19 Department determines an applicant’s position in the visa queue by referring to his or her 20 priority date, which is the date on which USCIS received the petition (I-130, I-140, I-360, I-526 21 Once preference category and chargeability are accounted for, the State or, in some cases, foreign labor certification) to accord the applicant immigrant status. 8 C.F.R. 22 § 245.1(g)(2). 23 24 Visa Bulletins 25 The State Department’s Bureau of Consular Affairs reports the availability of 26 immigrant visas using a monthly Visa Bulletin, which is developed by the Immigrant Visa 27 Control and Reporting Division. The Visa Bulletin indicates when statutorily limited visas are 28 available to prospective immigrants based on their individual priority date, preference category, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 5 1 and chargeability country. The Visa Bulletin allows applicants to check their place in the 2 various family based and employment-based immigrant visa queues by providing the most 3 recent date when a visa number is available for each category. An immigrant visa becomes 4 available to a noncitizen applicant when his or her priority date is earlier than the cut-off date 5 6 shown in the Visa Bulletin for his or her preference category and country of chargeability, or 7 when the Visa Bulletin shows the numbers for visa applicants in the non-citizen’s preference 8 category are “current.” 8 C.F.R. § 245.1(g)(1). The State Department issues each monthly 9 Visa Bulletin roughly three weeks before it is to go into effect, e.g. the “October Visa Bulletin” 10 is issued in mid-September. This provides applicants additional time to complete and submit 11 12 their applications before the end of the month deadline (in this example, the end of October) for 13 filing based on a particular month’s bulletin. 14 Adjustment of Status 15 Once an Immigrant Visa becomes available, the noncitizen may apply for adjustment of 16 status. 8 U.S.C. § 1255(a)(3). USCIS uses the Visa Bulletin to determine whether it will 17 18 accept Form I-485, Application to Register Permanent Residence or Adjust Status for filing, 19 and to determine when it can make a final adjudication on the application. A visa must be 20 available both at the time the applicant files Form I-485 and at the time USCIS approves the 21 application. 8 C.F.R. § 245.1(g); see also 8 C.F.R. § 245.2(a)(2)(i)(A)-(C). 22 Visa Bulletin Published on September 9, 2015 23 24 In July 2015, after significant inter-agency coordination and consultation and a Request 25 for Information published in the Federal Register which elicited approximately 1,650 26 responses, see 79 Fed. Reg. 78458 (Dec. 30, 2014), the White House announced that it would 27 revise the monthly Visa Bulletin to better estimate immigrant visa availability for prospective 28 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 6 1 applicants, and to provide needed predictability to nonimmigrant workers seeking permanent 2 residency. 3 4 On September 9, 2015, the State Department published its October 2015 Visa Bulletin. See Dkt. #22-3 at 2-10. In addition to providing charts reflecting the normal cut-off priority 5 6 dates in each visa preference and chargeability category, which it now terms “Application Final 7 Action Dates” (“FADs”), the modernized October 2015 Visa Bulletin included a second chart 8 with a new set of dates, called “Dates for Filing Applications,” (“filing dates”) establishing 9 which adjustment applications may be filed in the relevant month. Id. The bulletin issued on 10 September 9, 2015, indicated that USCIS would accept adjustment of status applications for 11 12 employment-based visas filed pursuant to the filing date, rather than the final action date. Id. at 13 6. The Visa Bulletin also stated “[i]f it becomes necessary during the monthly allocation 14 process to retrogress a cutoff date, supplemental requests for numbers will be honored only if 15 the priority date falls within the new cut-off date announced in this bulletin. If at any time an 16 annual limit were reached, it would be necessary to immediately make the preference category 17 18 ‘unavailable’, and no further requests for numbers would be honored.” Id. at 2. 19 Also on September 9, 2015, USCIS published the dates for filing applications listed in 20 this Visa Bulletin on its website at the address listed in this Visa Bulletin, Dkt. #22-4, and 21 issued a press release addressing the changes, Dkt. #22-6. USCIS also created and posted to its 22 website an infographic describing a four-step process immigrant visa applicants should use to 23 24 understand the adjustment of status process. Dkt. #22-5. Under Step 4, USCIS instructs 25 potential applicants to “Check the [State Department] Visa Bulletin”, because “[i]t will 26 explain” which chart to use to determine when applicants can file for adjustment of status. Id. 27 According to Plaintiffs’ Second Amended Complaint: “in reliance on the government’s 28 modernized Visa Bulletin, thousands of highly skilled Chinese and Indian employment-based ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 7 1 immigrant visa applicants began the timely, costly, and disruptive process of gathering 2 documentation, obtaining medical certificates, and filling out applications.” Dkt. #22-1 at 25. 3 Revised Visa Bulletin Published on September 25, 2015 4 On September 25, 2015, the State Department issued a Revised Visa Bulletin for the 5 6 7 8 9 10 11 12 13 month of October. Dkt. #22-7. The Revised Visa Bulletin stated: This bulletin supersedes the bulletin for October 2015 that was originally published on September 9, 2015, and contained Dates for Filing Applications long used by the Department of State for internal processing purposes. Following consultations with the Department of Homeland Security (DHS), the Dates for Filing Applications for some categories in the Family-Sponsored and Employment-Based preferences have been adjusted to better reflect a timeframe justifying immediate action in the application process…. Please be advised that DHS will rely on this revised bulletin, rather than the bulletin published on September 9, 2015, when considering whether an individual is eligible to file an application for adjustment of status. 14 15 Id at 2. The Revised Bulletin altered the filing dates for six categories of immigrants, including 16 EB-2 applicants from both China and India, reducing the number of applicants who were 17 eligible to apply starting October 1, 2015. Id. at 6. Specifically, the revision eliminated 18 Chinese EB-2 applicants with priority dates between the original Bulletin’s cut-off of May 1, 19 2014, and the revised cut-off of January 1, 2013, and eliminated Indian EB-2 applicants with 20 21 22 priority dates between the original Bulletin’s cut-off of July 1, 2011, and the revised cut-off of July 1, 2009. See Dkt. ## 22-3; 22-7. 23 Plaintiffs’ Second Amended Complaint argues that a State Department Visa Bulletin, 24 from the moment it is published until the first day of the following month, creates a 25 “Preparation Period” window with legal and practical consequences that “shap[e] the conduct 26 27 and expectations of regulated parties and agencies.” Dkt. #22-1 at 18. Plaintiffs argue that 28 “[b]ecause the Visa Bulletin has never been permanently revised after issuance in a way that ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 8 1 adversely affected applicants’ ability to rely on it for guidance on when they can file their 2 adjustment applicants, the practical effect of publishing the Visa Bulletin and triggering the 3 Preparation Period is to immediately induce immigrant visa applicants, their attorneys, and 4 government agencies to take affirmative preparatory steps in reliance on the Bulletin.” Id. 5 6 C. Whether the Visa Bulletin Constitutes Final Agency Action 7 Under the APA, agency action is subject to judicial review only when it is made 8 reviewable by statute or is a “final” action “for which there is no other adequate remedy in a 9 court.” 5 U.S.C. § 704; see also Cabaccang v. U.S. Citizenship & Immigration Servs., 627 F.3d 10 1313, 1315 (9th Cir. 2010). The APA does not permit review where “statutes preclude judicial 11 12 review” and “where the agency action is committed to agency discretion by law.” 5 U.S.C. § 13 701(a)(1),(2). An agency action is considered final if two elements are met. First, the action 14 must “mark the consummation of the agency’s decisionmaking process…. And second, the 15 action must be one by which rights or obligations have been determined, or from which legal 16 consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997). “The imposition of 17 18 an obligation or the fixing of a legal relationship is the indicium of finality in the administrative 19 process.” Cabaccang, 627 F.3d at 1316; Mount Adams Veneer Co. v. United States, 896 F.2d 20 339, 343 (9th Cir. 1990). “Indicia of finality include: the administrative action challenged 21 should be a definitive statement of an agency’s position; the action should have a direct and 22 immediate effect on the day-to-day business of the complaining parties; the action should have 23 24 the status of law; immediate compliance with the terms should be expected; and the question 25 should be a legal one.” Mt. Adams Veneer Co., 896 F.2d at 343 (citing FTC v. Standard Oil 26 Co., 449 U.S. 232, 239-40 (1980)). “The core question is whether the agency has completed its 27 decisionmaking process, and whether the result of that process is one that will directly affect 28 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 9 1 the parties.” Oregon Nat. Desert Ass'n v. United States Forest Serv., 465 F.3d 977, 982 (9th 2 Cir. 2006). 3 4 Defendants argue that the publication of a filing chart such as those contained in the September 9 and 25, 2015, Visa Bulletins does not constitute a final agency action. Defendants 5 6 point out that these two Visa Bulletins indicated that applicants may use the Filing Chart “when 7 USCIS determines that there are more immigrant visas available for the fiscal year than there 8 are known applicants for such visas and that “USCIS has determined that this chart may be 9 used (in lieu of the [Application Final Action Dates] chart in paragraph 4.A.) this month for 10 filing applications for adjustment of status with USCIS.” Dkt. #27 (citing Dkt. ## 22-3; 22-7) 11 12 (emphasis in original). Defendants first argue that filing charts do not reflect an “unalterable” 13 decision because they are subject to change at any time to ensure that the agencies remain in 14 compliance with statutory limits. Id. at 9 (citing Nat’l Treasury Employees Union v. Fed. 15 Labor Relations Authority, 712 F.2d 669, 675 (D.C. Cir. 1983)). Defendants point out that the 16 September 9, 2015, Visa Bulletin stated that the cut off dates in the filing chart could be 17 18 “retrogress[ed]” and that if numbers of applicants from a foreign state reached a certain point, 19 “it would be necessary to immediately make the preference category ‘unavailable.’ Id. (citing 20 Dkt. #22-3 at 2). Defendants argue that these statements support a finding that the filing chart 21 “does not mark an unalterable decision.” Id. 22 Next, Defendants argue that no “legal consequences” flow from the publication of the 23 24 25 26 27 28 filing charts because: Even after the chart’s effective date, USCIS retains discretion to adjudicate both the petition and any request for ancillary benefits. The charts, therefore, do not have “the status of law” and do not themselves confer any right upon an individual to have an adjustment of status application accepted for filing. Rather, it is USCIS’s acceptance of a particular adjustment of status application ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 10 that determines Plaintiffs’ eligibility to apply for the ancillary benefits sought here… 1 2 Id. 3 4 In Response, Plaintiffs argue that once a Visa Bulletin is issued, the state department 5 and USCIS “take no further action to put it into effect.” Dkt. #30 at 12. Although Plaintiffs 6 admit that newly eligible applicants cannot apply “until the first of the month”—notably, this 7 date occurred after the State Department issued its revised Visa Bulletin—Plaintiffs argue that 8 the original Visa Bulletin had “extremely important consequences with respect to the issue of 9 10 good faith reliance for future act.” Id. citing (Gen. Elec., 290 F.3d at 383). Plaintiffs point to 11 several cases where courts have relied on Visa Bulletins as a legally binding statement of visa 12 availability which governs the legal rights of applicants. Id. (citing De Osorio v. Mayorkas, 13 656 F.3d 954, 957 (9th Cir. 2011); In re Zamora-Molina, 25 I. & N. Dec. 606, 609 (B.I.A. 14 15 2011); Bolvito v. Mukasey, 527 F.3d 428, 431–32 (5th Cir. 2008)). Plaintiffs point to a USCIS 16 field manual and agency rules that rely on the Visa Bulletin. Id. at 12-13. Plaintiffs argue that, 17 “[a]n agency action may be a final action under the APA despite the fact that the agency could 18 change its position later.” Id. at 13 (citing, inter alia, Am. Petroleum Inst. v. Envtl. Prot. 19 Agency, 906 F.2d 729, 739-40 (D.C. Cir. 1990) (“[T]he possibility of future agency action is 20 21 not sufficient to foreclose review of a definitive action. Otherwise, ‘review could be deferred 22 indefinitely.’”)). In response to Defendant’s argument that no legal consequence flows from 23 the publication of the Visa Bulletin because USCIS makes final determinations with regard to 24 specific applicants, Plaintiffs argue that “pursuant to its own regulations, USCIS has no 25 authority to determine immediate availability and must follow [the State Department’s] 26 27 determinations,” and that “Defendants approach finality in a rigid sense inconsistent with the 28 broad and flexible approach required.” Id. at 14 (citing 8 C.F.R. §42.51). ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 11 On Reply, Defendants argue that: 1 Plaintiffs do not address the unique features of the Filing Charts and the new two-chart system and, instead, cite to cases pre-dating the current system. Plaintiffs also cite cases from unrelated areas of agency practice to suggest that an action may be final even if it may later be revisited. See ECF No. 30 at 13. These cases present a readily-distinguishable situation where the agency has made a definitive determination that could at a future time be revisited. Here, the Filing Charts are not definitive determinations because they are necessarily subject (sic) ongoing revision based on fluctuating demand for visa numbers. 2 3 4 5 6 7 8 Dkt. #31 at 4. 9 10 The Court finds that Defendants are making a facial attack of jurisdiction with this 11 argument. Taking all the facts in the Second Amended Complaint as true and making all 12 reasonable inferences in favor of Plaintiffs, the Court finds that the agency actions in question, 13 the publishing of the September 9 and 25, 2015, Visa Bulletins and the dates contained therein, 14 15 do not constitute final agency action as a matter of law for two reasons. 16 First, the facts contained in the Second Amended Complaint and its attachments do not 17 show that these actions mark the consummation of the State Department’s decision-making 18 process as required under Bennett, supra. Rather, both of the Visa Bulletins intrinsically 19 indicate that USCIS “may” use the dates contained in the charts, and that dates might be 20 21 “retrogressed” or categories of applications made “unavailable” without notice. The Visa 22 Bulletins are informative rather than declarative in tone. Second, Defendants have convinced 23 the Court that “rights or obligations” are not determined by these Visa Bulletins, and that no 24 “legal consequences” flow from their issuance unless and until the month in question occurs— 25 e.g., October 1 for the October Bulletin.3 Because Defendants successfully revised the October 26 27 3 28 The cases cited by Plaintiffs for the proposition that a Visa Bulletin governs the legal rights of applicants are distinguishable. Plaintiff is unable to cite to a case directly on point. De Osorio states only that in order to obtain the visa and become an LPR, an applicant “must act within one year of notification of visa availability to… apply for an adjustment of status (if present in the United States).” 656 F.3d at 957. De Osorio does not state that ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 12 1 Visa Bulletin before October, Plaintiffs did not have a right to submit their applications, and 2 Defendants had no obligation to accept them. Plaintiffs had yet to obtain a “right;” Defendants 3 had yet to have an “obligation.” Reviewing the indicia of finality from Mt. Adams Veneer Co., 4 896 F.2d at 343, the Court notes that: the two Visa Bulletins are not “definitive statements” but 5 6 informative statements; the September 9, 2015, Visa Bulletin did appear to have a direct and 7 immediate effect on the day-to-day business of Plaintiffs; the Visa Bulletins did not have the 8 status of law, if at all, until October 1, 2015; immediate compliance with the terms of these 9 Visa Bulletins was clearly not expected; and the Visa Bulletins did not necessarily answer a 10 legal question. These indicia of finality support the Court’s conclusion that the two Visa 11 12 Bulletins in question do not constitute final agency action. 13 Because these agency actions do not constitute final agency action, the Court lacks 14 jurisdiction over Plaintiffs’ claims and need not address Defendants’ other jurisdictional or 15 12(b)(6) arguments. However, the Court notes that Plaintiffs have conceded that monetary 16 relief is not permissible for their claims, and that it appears Plaintiffs’ only remaining 17 18 substantive request for relief is “reinstatement of the Original Visa Bulletin.” Dkt. #30 at 28; 19 see Dkt. #22-1 at 45-46. Plaintiffs’ Second Amended Complaint explicitly states causes of 20 action under 5 U.S.C. § 706(2), which gives courts the authority to set aside unlawful agency 21 actions and remand the matter to the agency for further consideration. See, e.g., Nat’l Ass’n of 22 Home Builders v. Defenders of Wildlife, 551 U.S. 644, 657-58 (2007). Plaintiffs do not cite to 23 24 5 U.S.C. §706(1), which allows a reviewing court to “compel agency action unlawfully 25 26 27 28 notification of visa availability guarantees applicants a year to submit an application. In re Zamora-Molina, supra cites to a Visa Bulletin to determine whether or not a visa was available to the respondent, and Bolvito, supra, cites to 8 C.F.R. § 245.1(g) for the proposition that a visa bulletin will be consulted to determine whether or not a visa is immediately available. These cases indicate that a Visa Bulletin can provide necessary information, but do not hold that Visa Bulletins themselves create rights or obligations. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 13 1 withheld or unreasonably delayed.” Even if this Court did not lack jurisdiction over Plaintiffs’ 2 claims, this would appear to be grounds to dismiss Plaintiffs’ claims under Rule 12(b)(6). 3 4 D. Leave to Amend Where a complaint is dismissed for failure to state a claim, “leave to amend should be 5 6 granted unless the court determines that the allegation of other facts consistent with the 7 challenged pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv- 8 Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). The Court finds that the parties have 9 thoroughly presented the relevant facts of this case, that the parties’ dispute is a purely legal 10 one, and that there are no other facts consistent with the challenged pleading which could cure 11 12 the deficiencies listed above. For that reason, these claims will be dismissed with prejudice. IV. 13 14 15 CONCLUSION Having reviewed the relevant pleadings, the declarations and exhibits attached thereto, and the remainder of the record, the Court hereby finds and ORDERS: 16 1) Defendants’ Motion to Dismiss (Dkt. #27) is GRANTED. 17 18 2) Plaintiffs’ claims are dismissed with prejudice. 19 3) This case is CLOSED. 20 DATED this 16 day of May 2016. 21 22 23 24 A RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 25 26 27 28 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 14
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