United States District Court, D. South Carolina, Orangeburg Division
ORDER AND OPINION
Robert John Polfliet and Masato Kimiki (together
"Plaintiffs") filed the instant action against
Defendants Leon Rodriguez, Director of the United States
Citizenship and Immigration Services ("USCIS"), and
Loretta Lynch, Attorney General of the United States,
(together "Defendants") seeking to have the court
set aside the USCIS's decision to revoke Kimiki's
visa petition pursuant to the Adam Walsh Child Protection and
Safety Act of 2006 (the "Adam Walsh Act"), 42
U.S.C. §§ 16901-16997. (ECF No. 1.)
matter is before the court on Defendants' Motion to
Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure (ECF No. 6). Plaintiffs oppose
Defendants' Motion to Dismiss asserting that "the
[c]ourt should deny this motion, order the government to file
the certified administrative record, and set a briefing
schedule." (ECF No. 11 at 1.) For the reasons set forth
below, the court GRANTS Defendants'
Motion to Dismiss pursuant to Rule 12(b)(1) and
DENIES AS MOOT Defendants' Motion to
Dismiss pursuant to Rule 12(b)(6).
RELEVANT BACKGROUND TO PENDING MOTION
is a United States citizen residing in Orangeburg, South
Carolina. (ECF No. 1 at 2 ¶ 1.) Kimiki is Polfliet's
stepson and a Japanese national and citizen. (Id.
¶ 2.) Plaintiffs allege that Polfliet as a member of the
United States Air Force "was stationed in Japan in the
late 1990s and early 2000s." (ECF No. 1 at 3 ¶ 8.)
While in Japan, Polfliet allegedly met and eventually married
Kimiki's biological mother, also a Japanese national and
citizen. (Id. ¶¶ 9, 12.) Plaintiffs
further allege that at some unspecified time before 2006,
Polfliet was "convicted by a general court-martial
before a military judge sitting alone of various crimes,
including 18 U.S.C. § 2252A for possession of child
pornography." (ECF No. 1 at 3 ¶ 10.)
2006 and pursuant to the Immigration and Nationality Act (the
"INA"),  8 U.S.C. §§ 1101-07, 1151-1381,
1401-1504, 1521-1525 & 1531-1537, Plaintiffs allege that
Polfliet submitted a Form 1-130, Petition for Alien Relative
to the USCIS for purposes of obtaining an immigrant visa as
to his wife. (ECF No. 1 at 3 ¶ 14.) The USCIS
approved Polfliet's petition for his wife. (Id.)
Thereafter, Kimiki allegedly moved to the United States in
approximately 2008. (Id., ¶ 15.) On June 18, 2012, the
USCIS allegedly approved a Form 1-130, Petition for Alien
Relative as to Kimiki. (Id. at 4 ¶ 16.)
November 18, 2013, Plaintiffs allege that they received a
notice conveying the USCIS's intent to revoke
Kimiki's immigrant visa pursuant to the Adam Walsh Act.
(Id. ¶ 19; see also ECF No. 6-2 at 2.)
Plaintiffs further allege that Polfliet responded to the
notice of revocation, but the USCIS nevertheless revoked
Kimiki's status on September 2, 2015, finding that
Polfliet was ineligible to file a visa petition under the INA
because of his child pornography conviction. (ECF Nos. 1 at 4
¶¶ 21-22 & 6-2 at 2-3.) As part of its findings
in accordance with the Adam Walsh Act, the USCIS observed
that Polfliet's "evidence does not demonstrate that
you pose no risk to the safety and well-being of your
beneficiary or beneficiaries." (ECF No. 6-2 at 6.) On
July 18, 2016, the Board of Immigration Appeals affirmed the
USCIS's revocation of Kimiki's visa. (ECF Nos. 1 at 4
¶¶ 23-24 & 6-3 at 3.)
result of the foregoing, Plaintiffs filed an action in this
court on October 11, 2016, alleging that application of the
Adam Walsh Act to Kimiki's immigrant visa was arbitrary
and capricious ("Count One") under the
Administrative Procedures Act ("APA"), 5 U.S.C.
§§ 701-706,  improperly retroactive ("Count
Four") and violated Plaintiffs' procedural due
process rights ("Counts Two and Three") protected
by the Fifth Amendment to the United States Constitution.
(ECF No. 1 at 4 ¶ 25-7 ¶ 54.) Additionally,
Plaintiffs allege that they are entitled to an award of
attorney's fees ("Count Five") pursuant to the
Equal Access to Justice Act ("EAJA"), 28 U.S.C.
§ 2412. (Id. at 7 ¶¶ 55-59.) On
January 13, 2017, Defendants filed the instant Motion to
Dismiss. (ECF No. 11.) The parties then proceeded to respond,
reply, and file supplemental authorities for the court's
review. (ECF Nos. 11, 14, 16, 19 & 20.)
court has jurisdiction over this matter pursuant to 28 U.S.C.
§ 1331, as a federal question under the APA is
presented. (ECF No. 1 at 4 ¶ 25-5 ¶ 37.)
Additionally, Plaintiffs demonstrate the court's
jurisdiction through their allegations of a deprivation of
their Fifth Amendment right to procedural due process. (ECF
No. 1 at 6 ¶¶ 43-47.)
Motions to Dismiss Pursuant to Rule 12(b)(1) for Lack of
Subject Matter Jurisdiction
III of the Constitution limits the jurisdiction of the
federal courts to the consideration of "cases" and
"controversies." U.S. Const, art. Ill. § 2.
"Federal courts are courts of limited subject matter
jurisdiction, and as such there is no presumption that the
court has jurisdiction." Pinklev. Inc. v. City of
Fredrick. Md.. 191 F.3d 394, 399 (4th Cir. 1999). A Rule
12(b)(1) motion for lack of subject matter jurisdiction
raises the fundamental question of whether a court has
jurisdiction to adjudicate the matter before it. Fed.R.Civ.P.
12(b)(1). In determining whether jurisdiction exists, the
court is to "regard the pleadings' allegations as
mere evidence on the issue, and may consider evidence outside
the pleadings without converting the proceeding to one for
summary judgment." Richmond, Fredericksburg &
Potomac R.R. Co. v. United States, 945 F.2d 765, 768
(4th Cir. 1991) (citing Adams v. Bain, 697 F.2d
1213, 1219 (4th Cir. 1982)). "The moving party should
prevail only if the material jurisdictional facts are not in
dispute and the moving party is entitled to prevail as a
matter of law." Id. (citation omitted). The
plaintiff bears the burden of proof on questions of subject
matter jurisdiction. See Evans v. B.F. Perkins Co..
166 F.3d 642, 647 (4th Cir. 1999).
Motions to Dismiss Pursuant to Rule 12(b)(6) for Failure
to State a Claim
motion to dismiss pursuant to Rule 12(b)(6) for failure to
state a claim upon which relief can be granted
"challenges the legal sufficiency of a complaint."
Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.
2009) (citations omitted); see also Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)
("A motion to dismiss under Rule 12(b)(6) . . . does not
resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses."). "In
considering a 12(b)(6) challenge to the sufficiency of a
complaint, this Rule must be applied in conjunction with the
liberal pleading standard set forth in Federal Rule of Civil
Procedure 8(a)." Jenkins v. Fed. Bureau of
Prisons, C/A No. 3:10-1968-CMC-JRM, 2011 WL 4482074, at
*2 (D.S.C. Sept. 26, 2011). Rule 8(a) provides that to be
legally sufficient, a pleading must contain a "short and
plain statement of the claim showing that the pleader is
entitled to relief." Fed.R.Civ.P. 8(a)(2).
motion to dismiss pursuant to Rule 12(b)(6) for failure to
state a claim should not be granted unless it appears certain
that the plaintiff can prove no set of facts that would
support her claim and would entitle her to relief. Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.
1993). When considering a motion to dismiss, the court should
accept as true all well-pleaded allegations and should view
the complaint in a light most favorable to the plaintiff.
Ostrzenski v. Seieel. 177 F.3d 245, 251 (4th Cir.
1999); Mylan Labs.. Inc.. 7 F.3d at 1134. "In
so doing, a court may consider documents attached to the
complaint or the motion to dismiss 'so long as they are
integral to the complaint and authentic.'"
Kensington Volunteer Fire Dep't, Inc. v. Montgomery
Cty., Md., 684 F.3d 462, 467 (4th Cir. 2012) (quoting
Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176,
180 (4th Cir. 2009)). "To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. Iqbal556 U.S. 662,