The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendants' ("Government") motion to dismiss. For the reasons stated below, we grant in part and deny in part the Government's motion.
Plaintiffs David Ogbolumani ("David") and Lacey Ogbolumani ("Lacey") are husband and wife. Plaintiffs allege that David is a citizen of Nigeria and that he first entered the United States on September 30, 1990. Plaintiffs further allege that David entered into a good faith marriage with Lacey, a United States citizen, on May 20, 2000. On January 16, 2001, Lacey filed a Visa Petition on Form I-130 to classify her husband David as an "immediate relative" of a United States citizen ("Lacey's Visa Petition"). Also on January 16, 2001, David concurrently filed an Application to Adjust Status on Form I-485 to become a lawful permanent resident of the United States ("Adjustment of Status Application"). On May 20, 2002, the Immigration and Naturalization Service ("INS") sent Lacey a "notice of intent to deny petition for alien relative." This notice advised Lacey that an investigation by the INS had revealed that David had previously entered into a sham marriage in 1997 for the purpose of evading immigration laws, and therefore it was the intention of the INS to deny Lacey's Visa Petition. On March 25, 2004, the United States Citizenship and Immigration Services ("CIS")(one of the successor agencies to the INS, as of November 25, 2002) denied David's Adjustment of Status Application for the reason that Lacey's Visa Petition had been denied and, therefore, David was not eligible for Adjustment of Status since no visa was available to David. On October 6, 2006, Lacey's Visa Petition denial was affirmed on appeal by the Board of Immigration Appeals ("BIA"), in a per curiam order.
Plaintiffs filed the instant action on November 3, 2006, seeking relief under the Declaratory Judgment Act, 28 U.S.C. § 2202 et seq., and the Administrative Procedures Act, 5 U.S.C. § 702 et seq. Plaintiffs are also alleging "[v]iolations of the Fifth Amendment, Due Process and Equal Protection Clauses." Plaintiff Lacey claims that the decision by the CIS to deny her Visa Petition should be reversed. Plaintiff David claims that the decision by the CIS to deny his Adjustment of Status Application should be reversed. The Government filed the instant motion to dismiss, asserting that the court lacks jurisdiction to review the CIS's decisions and that Plaintiffs have failed to state a claim with regard to their constitutional claims.
In ruling on a motion to dismiss, brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). In order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'" and "if they do not, the plaintiff pleads itself out of court." E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)). Under the current notice pleading standard in federal courts a plaintiff need not "plead facts that, if true, establish each element of a 'cause of action. . . .'" See Sanjuan v. Amer. Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)(stating that "[a]t this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint" and that "[m]atching facts against legal elements comes later"). The Seventh Circuit has explained that "[o]ne pleads a 'claim for relief' by briefly describing the events." Sanjuan, 40 F.3d at 251; Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998)(stating that "[p]laintiffs need not plead facts or legal theories; it is enough to set out a claim for relief"). The plaintiff need not allege all of the facts involved in the claim and can plead conclusions. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002); Kyle, 144 F.3d at 455. However, any conclusions pled must "'provide the defendant with at least minimal notice of the claim,'" Kyle, 144 F.3d at 455(quoting Jackson v. Marion County, 66 F.3d 151, 153-54 (7th Cir. 1995)), and the plaintiff cannot satisfy federal pleading requirements merely "by attaching bare legal conclusions to narrated facts which fail to outline the bases of [his] claims." Perkins, 939 F.2d at 466-67.
The Government primarily argues that this court lacks jurisdiction to review both decisions of the CIS, namely the CIS's decision to deny David's Application for Adjustment of Status and the CIS's decision to deny Lacey's Visa Petition. The Government contends that both decisions were discretionary determinations and that this court is stripped of jurisdiction to review the CIS's decisions, pursuant to 8 U.S.C. § 1252(a)(2)(B)(i)&(ii). The Government also moves to dismiss with respect to Plaintiffs' constitutional claims, contending that Plaintiffs have not adequately pled their constitutional claims. Plaintiffs oppose the motion to dismiss contending that this court is not stripped of jurisdiction and that Plaintiffs' complaint states a cause of action for their constitutional claims.
We will first address the issue of Plaintiffs' constitutional claims and we will next address whether the court is stripped of jurisdiction to review (1) the denial by CIS of David's Adjustment of Status Application and (2) the denial by CIS of Lacey's Visa Petition.
The Government has filed a motion to dismiss Plaintiffs' constitutional claims arguing that Plaintiffs have not adequately pled their constitutional claims. In their complaint, Plaintiffs state in regard to their constitutional claims, that "due to the statutory scheme, as applied to Plaintiffs, [sic] produced arbitrary and capricious decision-making by federal officials as to when an immigrant visa petition will be approved, [sic] the scheme also violates the Equal Protection Clause of the Fourteenth Amendment." (Compl. Par. 89). Although the Plaintiffs have asserted an Equal Protection claim under the Fourteenth Amendment, "the Fourteenth Amendment applies to the states" and "the Fifth Amendment applies to the federal government and also 'contains an equal protection component.'" See United States v. Hook, 471 F.3d 766, 774 (7th Cir. 2006)(quoting in part San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542 n. 21 (1987)). Therefore, we will treat Plaintiffs' claims as Due Process and Equal Protection claims under the Fifth Amendment.
Before we discuss whether the Plaintiffs have adequately pled their constitutional claims, it is necessary for us to address the question of whether we are stripped of jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i)&(ii) to review Plaintiffs' constitutional claims. The Seventh Circuit has found that because § 1255 Adjustment of Status benefit is a discretionary form of relief, specified under § 1252(a)(2)(B)(i), the courts are stripped of jurisdiction to review an alien's constitutional claims relating to Adjustment of Status. Dave v. Ashcroft, 363 F.3d 649, 652 (7th Cir. 2004). Therefore, we are stripped of jurisdiction to review David's constitutional claims. As to Lacey's constitutional claims, we note that Lacey filed for a Visa Petition benefit under § 1254, which is not a form of discretionary relief specified under § 1252(a)(2)(B)(i), nor is it considered a discretionary relief under § 1252(a)(2)(B)(ii), as explained later in this opinion. Therefore, we find that § 1252(a)(2)(B)(i)&(ii) jurisdiction-stripping provisions do not apply to a review of the denial of Lacey's constitutional rights relating to her Visa Petition.
In support of Plaintiffs' claim that Lacey's constitutional rights have been violated relating to Lacey's Visa Petition, Plaintiffs have stated in a conclusory fashion that the Government official that interviewed David's first wife in relation to David's first wife's Visa Petition used coercive tactics. (Compl. Par. 45). However, Plaintiffs also have alleged that the interview tactics did not lead David's first wife to withdraw her Visa Petition. (Compl. Par. 45). First, we note that the alleged victim of the constitutional violation was not David or Lacey, but was David's first wife. Second, Plaintiffs have not indicated that the alleged actions by the Government resulted in a violation of Lacey's constitutional rights.
Plaintiffs have dedicated most of their complaint to legal arguments indicating that Plaintiffs are dissatisfied with the outcome of the adjudication of Lacey's Visa Petition by the CIS. Plaintiffs' conclusory claim as to constitutional violations does not satisfy the federal pleading requirements. Concentra, 496 F.3d at 776, Kyle, 144 F.3d at 455 (stating that a plaintiff must "provide the defendant with at least minimal notice of the claim"); see also Perkins, 939 F.2d at 466-67 (stating that the plaintiff cannot satisfy federal pleading requirements merely "by attaching bare legal conclusions to narrated facts which fail to outline the bases of [his] claims"). There is no indication in the pleadings that either David's or Lacey's Due Process rights were violated. Also, even under the liberal notice pleading standard, Plaintiffs fail to sufficiently plead an Equal Protection claim. Nowhere in the complaint do Plaintiffs allege that they were treated differently because of their race, religion, nationality, or any other protected grounds.
The Government has also contended that Plaintiffs' constitutional claims should be dismissed because neither of the Plaintiffs has a constitutional right to the eventual adjustment of David's status and cites Hamdan v. Gonzales, 425 F.3d 1051 (7th Cir. 2005). In Hamdan, the Court held that Adjustment of Status is a form of discretionary relief to which an applicant has no Due Process interest and that there is no jurisdiction over meritless constitutional claims. Id. at1061. We agree with the Government. Plaintiffs have not advanced any viable constitutional claims in their complaint, and Plaintiffs have no constitutional right to the approval of immigration benefits. Therefore, based on the foregoing, we grant the Government's motion to dismiss Plaintiffs' constitutional claims for lack of jurisdiction and for failure to state a claim.
II. Jurisdiction to Review the CIS's Decisions
Before we address the issue of jurisdiction, we find it beneficial to discuss the procedures relating to certain applicable immigration benefits, more specifically the relationship and the difference between (1) a Visa Petition and (2) an Application for Adjustment of Status to that of a Lawful Permanent Resident, for the purposes of the instant action.
A. Immigration Law and Procedure
The Immigration and Nationality Act ("INA") is found in Chapter 8 of the United States Code. The INA provides for the issuance of Immigrant Visas in four general categories: (1) Immediate Relatives (spouse, parent, or minor child of a United States citizen, with no annual visa limitations), (2) Family-Based Preferences (with annual visa limitations), (3) Employment-Based Preferences (with annual visa limitations), and (4) Diversity Visa Immigrants (with annual visa limitations). 8 U.S.C. § 1151. A United States citizen may file a Visa Petition under 8 U.S.C. § 1154(a) to classify an alien spouse, a minor child, or a parent as an "immediate relative," pursuant to 8 U.S.C. § 1151(b)(2)(A)(i), or to classify other family members under the family-based preference category, pursuant to 8 U.S.C. § 1153(a)(1)(3)&(4). The Government is required to investigate each case, and if the Government determines that the facts in the petition are true, the Government "shall" approve the petition. 8 U.S.C. § 1154(b). Pursuant to 8 U.S.C. § 1154(c), no petition on behalf of a spouse of a United States citizen or Lawful Permanent Resident "shall" be approved if the Government determines that the alien spouse has previously entered or attempted to enter into a marriage for the purpose of evading immigration laws. 8 U.S.C. § 1154(c).
An alien beneficiary of an approved Visa Petition who is in the United States and who satisfies the statutory requirements under 8 U.S.C. § 1255 may file an Application for Adjustment of Status to that of a Person Admitted for Permanent Residence, and the granting of such relief is in the discretion of the Attorney General. 8 U.S.C. § 1255.
In order for an alien spouse to become a Lawful Permanent Resident of the United States, through an Application for Adjustment of Status or an Application for an Immigrant Visa, the United States citizen spouse must first obtain the approval of a Visa Petition, filed on Form I-130, to classify the alien spouse as an "immediate relative" of a United States citizen, pursuant to § 1151(b)(2)(A)(i). See 8 C.F.R. 204.2(a)(1). Generally, there are two ways of becoming a Lawful Permanent Resident of the United States for an alien spouse after an approval of a Visa Petition classifying the spouse as an "immediate relative." First, if the alien spouse is outside the United States, or is in the United States but is statutorily ineligible to adjust his or her status to that of a Lawful Permanent Resident of the United States, he or she applies for an Immigrant Visa at the American Embassy or Consulate abroad and, after the approval of the Immigrant Visa Application, enters the United States as an Immigrant. 8 U.S.C. §§ 1201-02; 22 C.F.R. § 42; 8 C.F.R. § 204.2(a)(3). Second, if the alien spouse is in the United States, and is statutorily eligible to adjust his or her status to that of a Lawful Permanent Resident of the United States, he or she submits an Application for Adjustment of Status to the CIS. 8 U.S.C. § 1255; 8 C.F.R. § 245.1; 8 C.F.R. § 204.2(a)(3). In both of the above scenarios, an approved Visa Petition is a prerequisite. An Application for Adjustment of Status is not considered properly filed unless a visa is immediately available, and a visa is not available without an approved Visa Petition. 8 C.F.R. § 245.2(a)(2). It is entirely within the discretion of the CIS whether to grant or deny an Application for Adjustment of Status. 8 U.S.C. § 1255. An alien who is denied an Application for Adjustment of Status in the United States, either because of certain statutory ineligibility to adjust or because in the exercise of discretion the Attorney General or Secretary of Homeland Security has decided to deny the Application, the alien would still be eligible to apply for an Immigrant Visa at an American Embassy or Consulate abroad based upon the approved Visa Petition. 8 U.S.C. §§ 1201-02; 22 C.F.R. § 42; 8 C.F.R. § 204.2(a)(3). Upon the approval of the Immigrant Visa Application, the alien may seek admission to the United States as an Immigrant. 8 U.S.C. §§ 1201-02; 22 C.F.R. § 42; see also 8 U.S.C. § 1154(e).
The terms "Immigrant," "Permanent Resident," and "Lawfully Admitted for Permanent Residence," are all used to describe an alien who is a Lawful Permanent Resident of the United States. See 8 U.S.C. § 1101(a)(15)&(20); see also 8 U.S.C. 1255. A Permanent Resident Card, also commonly known as a "Green Card," is issued on Forms AR-3, AR-103, I-151, or I-551 in connection with "Lawful Admission for Permanent Residence." 8 C.F.R. § 245.2(b); see also 8 C.F.R. § 103.2(b)(17). When an Immigrant is admitted to the United States with an Immigrant Visa, such an Immigrant, upon entry, becomes a Lawful Permanent Resident of the United States and is issued a "Green Card." When a non-immigrant, while in the United States, applies for and is granted an Adjustment of Status under § 1255, such an alien becomes a Lawful Permanent Resident of the United States as of the date of the approval and is issued a Permanent Resident Card (Green ...