Lack of Subject Matter Jurisdiction Foils Swimmer’s Claim

Jul 4, 2008

A former scholarship swimmer for the University of Florida has lost a bid to compel a reevaluation of his “Immigrant Petition for Alien of Extraordinary Ability” after a federal judge granted the U.S. Department of Homeland Security’s motion to dismiss for lack of subject matter jurisdiction.
Plaintiff Carlos Jayme, a foreign national, had filed the aforementioned petition on June 16, 2006, seeking permanent resident status as an alien of “extraordinary ability” in the field of athletics pursuant to 8 U.S.C. § 1153(b)(1)(A). 2 Id., p.6.
As a point of reference, the court wrote that 8 U.S.C. § 1153(b)(1)(A) provides that:
“Visas shall first be made available…to qualified immigrants who are aliens described in any of the following subparagraphs:
“(A) Aliens with extraordinary ability: An alien is described in this subparagraph if-(i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation … .”
The United States Citizenship and Immigration Services initially approved the plaintiff’s I-140 Petition on August 2, 2006. Id., P 9.
However, on November 2, 2007, USCIS issued a Notice of Revocation as to its prior approval, noting that the plaintiff had failed to submit “sufficient evidence demonstrating extraordinary athletic accomplishment.” Id., p. 12-20. The Notice also provided the plaintiff with the opportunity to appeal the revocation before the Administrative Appeals Office, which the plaintiff subsequently did. That appeal remains pending.
“Shortly thereafter, the plaintiff filed the instant Writ of Mandamus, alleging that the revocation of his I-140 Petition violated applicable laws and regulations. The plaintiff seeks to compel reevaluation of the Petition in conformity with the proper standards. The defendants have moved to dismiss for lack of subject matter jurisdiction.”
Of great relevance to the instant case, the court noted recent changes to 8 U.S.C. § 1153(b)(1)(A) and § 1155, which provides that “the Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him.”
The court wrote that “the plain language of the statute clearly provides the Secretary discretionary authority to classify each set of circumstances meeting the good and sufficient cause standard. Courts considering the discretionary nature of I-140 decisions have reached the same conclusion.” See Ghanem v. Upchurch, 481 F.3d 222, 224 (5th Cir. 2007) (joining Third and Seventh Circuit in deeming § 1155 decisions discretionary.)
The plaintiff argued that there had been an abuse of discretion in the government’s decision, arguing that in the instant case a decision “was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.”
The court disagreed. It also went on to outline why none of the following confers jurisdiction: Mandamus (28 U.S.C. § 1361); Declaratory Judgment Act (28 U.S.C. §§ 2201, 2202); 28 U.S.C. § 1331; and the Administrative Procedure Act
“Having determined that subject matter jurisdiction does not exist,” the court wrote, there is no reason to consider the substantive merits of the plaintiff’s claims or accompanying motions.
Carlos Jayme v. U.S. Department of Homeland Security, et al., S.D. Fla.; Case No. 07-23022-SEITZ-O’SULLIVAN, 2008 U.S. Dist. LEXIS 34737; 4/28/08
Attorneys or Record: (for plaintiff) Charles J. Sibley, Lead Attorney, Miami, FL. (for defendant) Carole M. Fernandez, Lead Attorney, United States Attorney’s Office, Miami, FL.


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