Ledesma Paredes v. Barr

                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA


    EDUARDO LEDESMA PAREDES and
    VICKY LEDESMA,

                    Plaintiffs,

    v.                                   Civil Action No. 20-1255 (EGS)

    MERRICK GARLAND, in his
    official capacity as
    Attorney General of the
    United States, et al.,

                    Defendants.



                            MEMORANDUM OPINION

     I.     Introduction

          Plaintiffs Eduardo Ledesma Paredes (“Mr. Ledesma Paredes”)

and Vicky Ledesma (“Ms. Ledesma”) (collectively, “Plaintiffs”)

bring this action asserting constitutional claims and claims

under the Administrative Procedure Act (“APA”), 

,

et seq., in connection with Mr. Ledesma Paredes’ application for

admission to the United States (“U.S.”) under an immigrant visa

pursuant to the requirements of the Immigration and Nationality

Act (“INA”). See Am. Compl., ECF No. 19 at 2-3, 5-6. 1 Mr. Ledesma

Paredes, a citizen of Mexico currently residing in Mexico, Ex. 2



1 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
original page number of the filed document.
                                     1
to Compl., ECF No. 1-3 at 5; sought admission to the U.S. and to

adjust his immigration status to that of a lawful permanent

resident based on his spousal relationship to Ms. Ledesma, a

U.S. citizen, Am. Compl., ECF No. 19 at 5-6. The U.S.

Citizenship and Immigration Services (“USCIS”) determined that

he was ineligible for: (1) admission to the U.S., i.e.,

statutorily “inadmissible;” and (2) a waiver of that

inadmissibility, and therefore denied his application, including

various subsequent appeals to its Administrative Appeals Office

(“AAO”). 

 Plaintiffs, challenging these decisions, have sued

various federal government officials in their official

capacities, including Merrick Garland, the U.S. Attorney

General; Alejandro Mayorkas, Secretary of the U.S. Department of

Homeland Security; Ur Jaddou, Director of USCIS; Lorne Miller,

Director of the USCIS Nebraska Service Center (“NSC”); and John

and Jane Doe Adjudicators 1 through 1000 “as U.S. officers of

the State Department, responsible for the granting or refusal of

waivers” (collectively, “Defendants” or “USCIS”). 2 

.

     Pending before the Court is Defendants’ Motion to Dismiss

the Amended Complaint. See Defs.’ Mot., ECF No. 21; Defs.’ Mem.

of P. & A. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), ECF No. 21-




2 Pursuant to Federal Rule of Civil Procedure 25(d), the current
government officials holding these positions are “automatically
substituted as” Defendants for their predecessors.
                                2
1. Upon careful consideration of Plaintiffs’ Amended Complaint, 3

the pending motion, the opposition, the reply thereto, and the

applicable law and regulations, the Court GRANTS Defendants’

Motion to Dismiss, ECF No. 21; and DISMISSES Plaintiffs’ Amended

Complaint, ECF No. 19.

    II.   Background

          A. Statutory and Regulatory Background

      The INA provides that individuals born in a foreign country

“who may be issued immigrant visas or who may otherwise acquire

the status of an alien lawfully admitted to the [U.S.] for

permanent residence are limited to[,]” among other categories,

the “‘immediate relatives’ . . . of a citizen of the [U.S.],”

meaning “the children, spouses, and parents of” that U.S.

citizen. 

(a)-(b)(2)(A)(i); see also 

 (permitting the issuance of immigrant visas to an

“immediate relative” of a U.S. citizen “upon satisfactory proof

. . . that the applicant is entitled to . . . immediate relative

status”). However, qualifying foreign nationals are deemed

“inadmissible aliens,” i.e., “ineligible to receive visas and

ineligible to be admitted to the [U.S.,]” if they satisfy the




3 “Because [Plaintiffs’] amended complaint supersedes the
original complaint, the amended complaint is now the operative
complaint.” Nat’l City Mortg. Co. v. Navarro, 

 (D.D.C. 2004) (citing Washer v. Bullitt Cnty., 

, 

, 

 (1884)).
                                  3
criteria for certain grounds of inadmissibility. See 

(a)(1)-(10) (detailing the various grounds of

inadmissibility, including, among others, “health-related

grounds,” “criminal and related grounds,” “security and related

grounds,” “illegal entrants and immigration violators” grounds,

and “aliens previously removed” grounds).

     Three grounds of inadmissibility are relevant here. First,

under section 212(a)(2)(A) of the INA, a foreign national is

inadmissible to the U.S. if he has been convicted of, or admits

to having committed, a crime involving moral turpitude (“CIMT”)

or a violation of state or federal law relating to a controlled

substance. 

 § 1182(a)(2)(A)(i). Second, under section

212(a)(9)(B)(i) of the INA, a foreign national is inadmissible

if he was unlawfully present in the U.S. for one year or more

and “again seeks admission within [ten] years of the date of

[his] departure or removal from the [U.S.]” Id. §

1182(a)(9)(B)(i)(II). Third, under section 212(a)(9)(A)(ii) of

the INA, a foreign national who has been ordered removed or who

departed from the U.S. while an order of removal was

outstanding, “and who seeks admission within [ten] years of the

date of [his] departure or removal (or within [twenty] years of

such date in the case of a second or subsequent removal or at

any time in the case of an alien convicted of an aggravated

felony) is inadmissible.” Id. § 1182(a)(9)(A)(ii).

                                4
     Although a foreign national who meets the criteria for any

one of these three grounds is deemed an “inadmissible alien,”

USCIS may grant a discretionary waiver of that inadmissibility

“if refusal of admission would result in extreme hardship to a

qualifying relative.” Ex. 2 to Compl., ECF No. 1-3 at 5.

     First, USCIS may waive inadmissibility resulting from a

foreign national’s criminal history involving a CIMT or a

controlled substance violation relating to “a single offense of

simple possession of 30 grams or less of marijuana . . . in the

case of an immigrant who is the spouse . . . of a citizen of the

[U.S.,]” and “if it is established to the satisfaction of the

Attorney General that the alien’s denial of admission would

result in extreme hardship to” that U.S. citizen spouse. 

(a)(2)(F), (h)(1)(B)-(h)(2). The Attorney General,

“in his discretion” (through USCIS as his designee), must then

consent to the foreign national “applying or reapplying for a

visa, for admission to the [U.S.], or adjustment of status[,]”

and “[n]o court shall have jurisdiction to review a decision of

the Attorney General to grant or deny a waiver under this

subsection.” 

 § 1182(h)(2). By regulation, the Attorney

General generally “will not favorably exercise discretion under

section 212(h)(2) of the [INA] (

(h)(2)) . . . in

cases involving violent or dangerous crimes, except in

extraordinary circumstances, such as those involving national

                                5
security or foreign policy considerations, or cases in which an

alien clearly demonstrates that the denial of the application

for adjustment of status or an immigrant visa or admission as an

immigrant would result in exceptional and extremely unusual

hardship.” 

(d). However, even if such

exceptional hardship is established, “depending on the gravity

of the alien’s underlying criminal offense, a showing of

extraordinary circumstances might still be insufficient to

warrant a favorable exercise of discretion . . . .” 

 4

     Second, the Attorney General, in his “sole discretion” via

USCIS, may waive inadmissibility resulting from a foreign

national’s prior unlawful presence upon a showing that denial of

admission would result in extreme hardship to the individual’s

U.S. citizen spouse (or other qualifying relative). 

(a)(9)(B)(v). This section of the INA also states that “[n]o

court shall have jurisdiction to review a decision or action by

the Attorney General regarding a waiver under this clause.” 

Additionally, by regulation, “USCIS has exclusive jurisdiction

to grant a provisional unlawful presence waiver” of


4 This standard was initially set forth in Matter of Jean, 

 (A.G. 2002), in the context of a discretionary
waiver under section 209(c) of the INA (

(c))
pertaining to refugees, and for asylum applicants under section
208 of the INA (

). Waiver of Criminal Grounds of
Inadmissibility for Immigrants, 

, 78,676-77
(Dec. 26, 2002) (to be codified at 8 C.F.R. pt. 212). It was
later codified in 

(d) in 2002. 

.
                                6
inadmissibility for foreign nationals “who are pursuing consular

immigrant visa processing[,]” meaning they are presently located

outside of the U.S. and are applying for admission to the U.S.

at a U.S. Department of State consulate abroad. 

(e)(1); see Consular Processing, USCIS,

https://www.uscis.gov/green-card/green-card-processes-and-

procedures/consular-processing (last visited Oct. 3, 2023).

     Finally, a foreign national’s inadmissibility resulting

from a prior order of removal from the U.S. may also be waived

“if, prior to the date of the alien’s reembarkation at a place

outside the [U.S.] or attempt to be admitted from foreign

contiguous territory, the Attorney General has consented to the

alien’s reapplying for admission.” 

(a)(9)(A)(iii).

     Because “[a] foreign national seeking to be admitted to the

[U.S.] as an immigrant or to adjust status must be ‘admissible’

or receive a waiver of inadmissibility[,]” failure to establish

admissibility or alternatively receive a discretionary waiver of

that inadmissibility from USCIS will result in the denial of the

foreign national’s application for admission. Ex. 2 to Compl.,

ECF No. 1-3 at 5.




                                7
       B. Factual and Procedural Background

     The following facts reflect the allegations in the

Complaint and the documents incorporated by reference therein, 5

which the Court assumes are true for the purposes of deciding

this motion and construes in Plaintiffs’ favor. See Baird v.

Gotbaum, 

, 169 n.2 (D.C. Cir. 2015).

     Mr. Ledesma Paredes, a native and citizen of Mexico

currently residing in Mexico, Ex. 2 to Compl., ECF No. 1-3 at 5;

is married to Ms. Ledesma, a U.S. citizen, and seeks admission

to the U.S. based on this spousal relationship, Am. Compl., ECF

No. 19 at 5 ¶¶ 15-16. Under the INA, “[t]he spouse of a U.S.




5 Plaintiffs included various exhibits to their original
Complaint, which are enumerated and described in a declaration
from their attorney, Lizz Cannon. See Exs. 1-5 to Compl., ECF
No. 1-3 at 1-41; Am. Decl. of Lizz Cannon, ECF No. 5 at 1-2.
They did not refile these exhibits with their Amended Complaint
but still refer to and incorporate those exhibits in that
pleading, and an updated declaration from their attorney also
lists the original exhibits as exhibits to the Amended
Complaint, in addition to a new sixth exhibit. See Am. Decl. of
Lizz Cannon, ECF No. 19-2 at 1-2; Ex. 6 to Am. Compl., ECF No.
19-3 at 1-5. “Although a court generally cannot consider matters
beyond the pleadings at the motion-to-dismiss stage, it may
consider ‘documents attached as exhibits or incorporated by
reference in the complaint . . . . ’” Patrick v. Dist. of
Columbia, 

 (D.D.C. 2015) (citation
omitted); see also EEOC v. St. Francis Xavier Parochial Sch.,

 (D.C. Cir. 1997) (“In determining whether a
complaint fails to state a claim, [the court] may consider only
the facts alleged in the complaint, any documents either
attached to or incorporated in the complaint and matters of
which [the court] may take judicial notice.”). Therefore, the
Court considers in full the exhibits attached to both
Plaintiffs’ Complaint and Amended Complaint.
                                8
citizen may, if other criteria are met, apply for an immigrant

visa to enter the U.S. with the status of a lawful permanent

resident.” Id. ¶ 16. This process is initiated when the U.S.

citizen spouse (the petitioner) files “Form I-130, Petition for

Alien Relative,” which “is the first step in helping an eligible

relative apply to immigrate to the [U.S.] and get a Green

Card[,]” and is generally approved if sufficient evidence

establishing the qualifying relationship between the petitioner

and the foreign national (the beneficiary) is provided. I-130,

Petition for Alien Relative, USCIS, https://www.uscis.gov/i-130

(last visited Oct. 3, 2023). Ms. Ledesma filed an I-130 petition

on behalf of Mr. Ledesma Paredes, which was received by USCIS on

December 31, 2013, and approved by USCIS on October 8, 2014,

thus establishing their spousal relationship. See Ex. 1 to

Compl., ECF No. 1-3 at 2; Am. Compl., ECF No. 19 at 5 ¶ 16.

     An approved I-130 petition for foreign nationals residing

outside of the U.S. is “forwarded to the U.S. Department of

State through the Embassy with jurisdiction over the

beneficiary, who then becomes an Applicant for Immigrant Visa at

the Consulate.” Am. Compl., ECF No. 19 at 5 ¶ 17. As a result,

Mr. Ledesma Paredes visited a U.S. consulate in Mexico to seek a

visa through the U.S. Department of State. Id. at 4 ¶ 10, 5 ¶

17. At his consular interview on October 27, 2015, Mr. Ledesma

Paredes was denied a visa “due to his prior removal from the

                                9
[U.S.], his time without lawful presence [in the U.S.], and

[prior] criminal charges[,]” all of which rendered him

inadmissible to the U.S. under the INA. Id. at 5-6 ¶ 17; see

generally 

(a). These prior criminal charges

included 2011 convictions for marijuana possession and theft and

a 2013 conviction “for aggravated assault with a deadly weapon

without intent to kill, battery-touch or strike, and throwing a

deadly missile at, within, or in an occupied vehicle[,]” which

amounts to a CIMT. Ex. 5 to Compl., ECF No. 1-3 at 35; see also

Ex. 2 to Compl., ECF No. 1-3 at 5 (“The Applicant has been found

inadmissible for a [CIMT], a controlled substance violation, and

for unlawful presence.”).

     “In recognition of the special place that spouses of U.S.

citizens hold in immigration law, Congress has” provided

discretion to USCIS “to review applications for a waiver of [ ]

inadmissibility for a spouse of a U.S. citizen” based on extreme

hardship to that U.S. citizen spouse, which is initiated when

the inadmissible foreign national submits “Form I-601,

Application for Waiver of Grounds of Inadmissibility” to USCIS

for review. Am. Compl., ECF No. 19 at 6 ¶¶ 18-19 (citing 

(h)). In line with this procedural process, after

the U.S. Department of State denied his visa application, Mr.

Ledesma Paredes submitted Form I-601 to USCIS, seeking a waiver

of his various grounds of inadmissibility. 

. The

                               10
Director of USCIS’ NSC denied his I-601 application on January

18, 2017, concluding that “although [he] had shown that his

spouse was suffering extreme hardship, he did not merit the

favorable exercise of discretion.” Id.; Ex. 2 to Compl., ECF No.

1-3 at 5. The Director concluded that Mr. Ledesma Paredes’

“conviction was for a violent or dangerous crime” and that he

“did not meet the heightened discretionary [hardship] standard

applicable to individuals convicted of a violent or dangerous

crime.” Ex. 2 to Compl., ECF No. 1-3 at 5; see 

(d) (requiring a showing of “exceptional and extremely

unusual hardship” to the U.S. citizen spouse for an inadmissible

“immigrant alien” with a history of “violent or dangerous

crimes” to receive a favorable exercise of discretion).

     Following this denial, Mr. Ledesma Paredes appealed to

USCIS’ AAO, “the only means for appealing such decisions.” Am.

Compl., ECF No. 19 at 6 ¶ 19. On appeal, he did not contest the

NSC Director’s findings of inadmissibility due to his unlawful

presence and convictions for a CIMT and a controlled substance

violation, but he argued that he merited a favorable exercise of

discretion because his convictions were not for violent or

dangerous crimes. Ex. 2 to Compl., ECF No. 1-3 at 5-6.

     The AAO rejected this argument, and on September 11, 2017,

it denied and dismissed Mr. Ledesma Paredes’ appeal, concluding

that he did “not merit the favorable exercise of discretion”

                               11
because it found his prior CIMT conviction to be both “violent”

and “dangerous.” 

. The AAO noted that “[c]ourt

documentation in the record show[ed] that on May 7, 2013, in the

state of Florida, [Mr. Ledesma Paredes] was convicted of

aggravated battery with a deadly weapon without the intent to

kill.” 

. The arrest report indicated that this

conviction resulted from an altercation on a roadway in which

Mr. Ledesma Paredes “threw a heavy glass at another driver,

hitting him in the arm, and later threatened the driver with a

knife.” 

 After looking to the specific circumstances,

statutory elements, and nature of the offense, the AAO concluded

that this crime was “violent” because Mr. Ledesma Paredes

threatened another person with a knife and threw a heavy object

at that person, and “dangerous” because the alteration occurred

while he and the other individual were driving on a roadway. 

The AAO then turned to whether Mr. Ledesma Paredes had submitted

sufficient evidence establishing that the denial of his

application would result in “exceptional and extremely unusual

hardship”—beyond that of ordinary hardship—to Ms. Ledesma, who

suffers from various documented medical conditions. 

.

After reviewing the sum of Mr. Ledesma Paredes’ hardship

evidence, the AAO concluded, as did the USCIS NSC Director, that

although he had established extreme hardship to Ms. Ledesma if

his waiver was denied, he had not established that he merited “a

                               12
favorable exercise of discretion under the heightened

discretionary standard for individuals convicted of violent or

dangerous crimes.” 

.

     Because the AAO concluded that Mr. Ledesma Paredes was both

inadmissible and ineligible for an I-601 waiver of his grounds

of inadmissibility, it also declined to disturb the NSC

Director’s discretionary decision not to grant his “Form I-212,

Application for Permission to Reapply for Admission into the

United States After Deportation or Removal.” See Ex. 3 to

Compl., ECF No. 1-3 at 12. Having been previously ordered

removed from the U.S. in 2014, Mr. Ledesma Paredes was required

to seek permission to reapply for admission pursuant to section

212(a)(9)(A)(ii) of the INA, see 

(a)(9)(A)(ii);

but because the AAO dismissed his appeal of the denial of his

waiver application, it concluded on the same day, September 11,

2017, that “no purpose would be served in granting [his]

application for permission to reapply for admission[,]” Ex. 3 to

Compl., ECF No. 1-3 at 12-13.

     Following the AAO’s denial of his appeal, Mr. Ledesma

Paredes filed a motion asking the AAO to reopen and reconsider

its decision and included new evidence to support his waiver

application. Am. Compl., ECF No. 19 at 6 ¶ 19; see Ex. 5 to

Compl., ECF No. 1-3 at 33 (explaining that “[a] motion to

reconsider is based on an incorrect application of law or

                                 13
policy, and a motion to reopen is based on documentary evidence

of new facts”). Based on this additional evidence, the AAO

concluded that he had “submitted sufficient evidence to

establish exceptional or extremely unusual hardship[,]” as the

record indicated that Ms. Ledesma’s medical and mental health

conditions had worsened and that she might become permanently

disabled due to her medical conditions. Ex. 5 to Compl., ECF No.

1-3 at 34. Nonetheless, the AAO concluded that Mr. Ledesma

Paredes’ criminal history, including his 2013 CIMT conviction

for a “violent” and “dangerous” crime and his 2011 convictions

for marijuana possession and theft, coupled with numerous

immigration violations (including entry to the U.S. without

being admitted, a prior order of removal, and periods of

unlawful presence and employment in the U.S.) were of such

“gravity” that a favorable exercise of discretion remained

unwarranted when balancing the adverse factors against the

positive ones in his case. See 

 at 34-36 (citing 

(d)). Of particular significance to the AAO was that Mr.

Ledesma Paredes had not taken responsibility for his criminal

actions and had instead attempted to collaterally attack the

propriety of his convictions in his application for a waiver of

inadmissibility and his subsequent appeals of the denial of that

waiver. See 

. “Based on the nature, severity, and

recency of his crimes, his failure to take responsibility for

                               14
his past criminal activity, as well as [his] immigration

violations,” the AAO concluded that Mr. Ledesma Paredes’ “waiver

application remain[ed] denied as a matter of discretion[,]” and

it denied his motion to reopen and reconsider its prior

decision. 

.

     Mr. Ledesma Paredes then filed another motion to reconsider

with the AAO, in which he submitted additional evidence and

“urge[d]” the AAO to consider evidence of his rehabilitation,

his compliance with the penalties imposed on him, and “his

previous statements that he was in fact innocent of the crimes

but pleaded guilty to avoid a lengthy judicial process.” 

; Am. Compl., ECF No. 19 at 6 ¶ 19. On November 8, 2018, the

AAO denied this second motion to reconsider, reiterating that it

did “not have authority to go behind the judicial record of

conviction to determine whether [Mr. Ledesma Paredes] was guilty

or innocent of the charged offenses . . . absent evidence that

the conviction was vacated or overturned for substantive or

procedural defects in the underlying criminal proceedings.” Ex.

5 to Compl., ECF No. 1-3 at 40. Because Mr. Ledesma Paredes did

not submit any such evidence but rather “continue[d] to downplay

his responsibility for [his] crimes,” the AAO found no basis for

reevaluating its prior conclusions and denied his request for

reconsideration, concluding that Mr. Ledesma Paredes’ “waiver

request remains denied.” 

.

                               15
     On May 13, 2020, Plaintiffs filed the instant action

challenging USCIS’ refusal to grant Mr. Ledesma Paredes a waiver

of inadmissibility and alleging that they have exhausted their

administrative remedies. See Compl., ECF No. 1 at 2 ¶¶ 1-4, 11 ¶

42. In their initial Complaint, Plaintiffs named the Secretary

of the U.S. Department of State as a defendant. See 

 at 4 ¶

12. After Defendants filed a motion to dismiss on September 21,

2020, Plaintiffs filed their Amended Complaint on October 6,

2020, “altering the presentation of some of their claims and

removing the Secretary of State as a defendant.” Defs.’ Mem.,

ECF No. 21-1 at 11; see generally Am. Compl., ECF No. 19.

     Although not delineated in specific counts, Plaintiffs’

Amended Complaint alleges claims under the APA and

“constitutional claims and questions of law under the INA,

including those arising from the denial of waivers of

inadmissibility.” Am. Compl., ECF No. 19 at 3-4 ¶¶ 7-8.

Plaintiffs seek declaratory and injunctive relief and ask that

the Court: (1) “[a]ssume jurisdiction over this matter;” (2)

declare that USCIS made errors of law in concluding that Mr.

Ledesma Paredes “did not provide adequate evidence of his

eligibility [for] a waiver” and that such errors were unlawful

pursuant to the APA and the First Amendment to the U.S.

Constitution; (3) conclude that 

(d)—the federal

regulation governing USCIS’ denial of his waiver application—is

                               16
constitutionally void for vagueness and thus unlawfully applied

in the instant case; (4) compel Defendants to approve Mr.

Ledesma Paredes’ waiver application under the INA; and (5) award

Plaintiffs attorney’s fees and costs and any additional relief

the Court deems just and proper. 

 at 16 ¶¶ 44-45.

     On November 10, 2020, Defendants moved to dismiss

Plaintiffs’ Amended Complaint for lack of subject-matter

jurisdiction and failure to state a claim pursuant to Federal

Rule of Civil Procedure 12(b)(1) and 12(b)(6). See Defs.’ Mot.,

ECF No. 21 at 1; Defs.’ Mem., ECF No. 21-1 at 11-12. Plaintiffs

filed their opposition brief on November 30, 2020, see Pls.’

Opp’n, ECF No. 22-2; to which Defendants replied on January 14,

2021, see Defs.’ Reply, ECF No. 25. On May 1, 2023, Defendants

filed a Notice of Supplemental Authority “inform[ing] the Court

that, on March 17, 2023, the [Court of Appeals for the District

of Columbia Circuit (“D.C. Circuit”)] resolved certain legal

issues in Defendants’ motion to dismiss . . . in [their] favor.”

See Defs.’ Notice of Suppl. Authority in Supp. of Defs.’ Mot. to

Dismiss, ECF No. 27 at 1 (citing Abuzeid v. Mayorkas, 

 (D.C. Cir. 2023)). Defendants’ Motion to Dismiss is now

ripe and ready for the Court’s adjudication.




                               17
  III. Standard of Review

       A. Rule 12(b)(1)—Subject-Matter Jurisdiction

     “A federal district court may only hear a claim over which

[it] has subject-matter jurisdiction; therefore, a Rule 12(b)(1)

motion for dismissal is a threshold challenge to a court’s

jurisdiction.” Gregorio v. Hoover, 

(D.D.C. 2017) (citation omitted). To survive a Rule 12(b)(1)

motion, the plaintiff bears the burden of establishing that the

court has jurisdiction by a preponderance of the evidence. Moran

v. U.S. Capitol Police Bd., 

 (D.D.C.

2011) (citing Lujan v. Defs. of Wildlife, 

, 

, 

 (1992)). “Because Rule 12(b)(1)

concerns a court’s ability to hear a particular claim, the court

must scrutinize the plaintiff’s allegations more closely when

considering a motion to dismiss pursuant to Rule 12(b)(1) than

it would under a motion to dismiss pursuant to Rule 12(b)(6).”

Schmidt v. U.S. Capitol Police Bd., 

(D.D.C. 2011). In so doing, the court must accept as true all of

the factual allegations in the complaint and draw all reasonable

inferences in the plaintiff’s favor, but the court need not

“accept inferences unsupported by the facts alleged or legal

conclusions that are cast as factual allegations.” Rann v. Chao,

 (D.D.C. 2001).



                               18
     In reviewing a motion to dismiss pursuant to Rule 12(b)(1),

“the court need not limit itself to the allegations of the

complaint.” 

 (citing Hohri v. United States, 

 (D.C. Cir. 1986), vacated on other grounds, 

, 

, 

 (1987)). Rather, the court “may

consider such materials outside the pleadings as it deems

appropriate to resolve the question whether it has jurisdiction

to hear the case.” Scolaro v. Dist. of Columbia Bd. of Elections

& Ethics, 

 (D.D.C. 2000); see also Jerome

Stevens Pharms., Inc. v. FDA, 

 (D.C. Cir.

2005). “Faced with motions to dismiss under Rule 12(b)(1) and

Rule 12(b)(6), a court should first consider the Rule 12(b)(1)

motion because [o]nce a court determines that it lacks subject

matter jurisdiction, it can proceed no further.” Ctr. for

Biological Diversity v. Jackson, 

 (D.D.C.

2011) (citations and internal quotation marks omitted).

       B. Rule 12(b)(6)—Failure to State a Claim

     A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) “tests the legal sufficiency of a

complaint.” Browning v. Clinton, 

 (D.C. Cir.

2002). A complaint must contain “a short and plain statement of

the claim showing that the pleader is entitled to relief, in

order to give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests[.]” Bell Atl. Corp. v.

                               19
Twombly, 

, 

, 

(2007) (citation and internal quotation marks omitted).

     Despite this liberal pleading standard, 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. Iqbal, 

, 

, 173 L. Ed. 2d. 868 (2009) (quoting Twombly, 

). A claim is facially plausible when the facts pled in the

complaint allow the court “to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” 

 The

standard does not amount to a “probability requirement,” but

requires “more than a sheer possibility that a defendant has

acted unlawfully.” 

     “[W]hen ruling on a defendant’s motion to dismiss [pursuant

to Rule 12(b)(6)], a judge must accept as true all of the

factual allegations contained in the complaint[,]” Atherton v.

Dist. of Columbia Off. of the Mayor, 

 (D.C.

Cir. 2009) (citation omitted); and the court must give the

plaintiff “the benefit of all inferences that can be derived

from the facts alleged[,]” Kowal v. MCI Commc'ns Corp., 

 (D.C. Cir. 1994). However, the court may not accept

as true “the plaintiff’s legal conclusions or inferences that

are unsupported by the facts alleged.” Ralls Corp. v. Comm. on

Foreign Inv. in the U.S., 

 (D.C. Cir. 2014);

                               20
see also Papasan v. Allain, 

, 

,

 (1986) (“[Courts] are not bound to accept as

true a legal conclusion couched as a factual allegation.”);

Iqbal, 

 (concluding that “[t]hreadbare recitals

of the elements of a cause of action, supported by mere

conclusory statements, do not suffice”).

  IV.   Analysis

     Defendants contend that Plaintiffs’ Amended Complaint can

be divided into three claims. Defs.’ Mem., ECF No. 21-1 at 11.

First, Plaintiffs allege that USCIS’ denial of Mr. Ledesma

Paredes’ application for a waiver of inadmissibility was

arbitrary and capricious in violation of the APA. Am. Compl.,

ECF No. 19 at 2 ¶ 1. Second, Plaintiffs allege that in denying

Mr. Ledesma Paredes a waiver of inadmissibility, USCIS “failed

to properly select and weigh the [record] evidence” that he

submitted in support of his application, a failure they claim

involves “legal questions.” Defs.’ Mem., ECF No. 21-1 at 6, 11;

see Am. Compl., ECF No. 19 at 2 ¶ 1, 7-10 ¶¶ 20-30; Pls.’ Opp’n,

ECF No. 22-2 at 10, 11-19. Third, Plaintiffs allege that the

Court should conclude that 

(d) is

unconstitutional because the phrase “violent or dangerous,” as

used in the regulation to categorize crimes that negate the

favorable exercise of discretion in granting a waiver of

inadmissibility “except in extraordinary circumstances,” is void

                               21
for vagueness pursuant to the Supreme Court’s decision in

Sessions v. Dimaya, 584 U.S. ---, 

, 

 (2018). Am. Compl., ECF No. 19 at 2 ¶¶ 2-3.

     Defendants “move to dismiss these claims in their

entirety,” arguing that Plaintiffs’ “first two claims fail

because the decision to deny a waiver of inadmissibility is

committed to the discretion of the Attorney General, and a

statutory jurisdictional bar explicitly forecloses judicial

review.” Defs.’ Mem., ECF No. 21-1 at 6, 11. Because “[a]

federal district court may only hear a claim over which [it] has

subject-matter jurisdiction[,]” Gregorio, 

;

the Court first turns to the parties’ jurisdictional arguments

regarding Plaintiffs’ APA claims before assessing the validity

of their constitutional claim regarding 

(d),

which Defendants argue should be dismissed for failure to state

a claim, see Defs.’ Mem. ECF No. 21-1 at 18-20.

       A. The Court Lacks Subject-Matter Jurisdiction to Review
          USCIS’ Discretionary Decision to Deny Mr. Ledesma
          Paredes’ Application for a Waiver of Inadmissibility

     Regarding Plaintiffs’ first argument that USCIS violated

the APA, “through arbitrary and capricious actions,” by denying

Mr. Ledesma Paredes’ application for a waiver of his grounds of

inadmissibility, Am. Compl., ECF No. 19 at 2 ¶ 1; Defendants

argue that the Court “is without jurisdiction to review USCIS’

discretionary decision to deny” him this waiver pursuant to a

                               22
“jurisdictional bar” appearing in 

(a)(2)(B)(i),

Defs.’ Mem., ECF No. 21-1 at 13. Plaintiffs argue in opposition

that 

(a)(2)(B)(i) “relates only to cases

concerning review of removal orders[,]” which is not the case

here, and therefore, it does not deprive the Court of subject-

matter jurisdiction. See Pls.’ Opp’n, ECF No. 22-2 at 6-10. The

Court disagrees with Plaintiffs’ interpretation of 

(a)(2)(B)(i) and agrees with Defendants that the statute’s

jurisdictional bar applies here to preclude judicial review of

Plaintiffs’ APA claims relating to USCIS’ discretionary decision

to deny a waiver of inadmissibility to Mr. Ledesma Paredes.

                1. The Jurisdictional Bar Provided in 

(a)(2)(B)(i) Precludes Judicial Review of
                   USCIS’ Denial of an Application for a Waiver of
                   Inadmissibility Based on Criminal Grounds

     “District courts have federal-question jurisdiction over

APA cases unless such review is precluded by a separate

statute.” Abuzeid, 

 (citing Califano v. Sanders,

, 

, 

 (1977)). As

relevant here, 

(a)(2)(B), titled “Denials of

discretionary relief,” states:

          Notwithstanding any other provision of law
          (statutory or nonstatutory), . . . and
          regardless of whether the judgment, decision,
          or action is made in removal proceedings, no
          court shall have jurisdiction to review—

          (i)      any judgment regarding the granting of
                   relief under section 1182(h) . . . .

                                 23


(a)(2)(B)(i). As such, the plain language of this

statute states that the Court lacks “jurisdiction to review”

“all kinds of agency decisions that result in the denial of

relief[,]” which therefore includes decisions by USCIS pursuant

to section 1182(h) to deny foreign nationals’ applications for a

waiver of inadmissibility based on criminal grounds of

inadmissibility. Id.; see Abuzeid, 

 (citing Patel

v. Garland, 

, 

, 

 (2022)); see also 

(a)(2)(F) (“For provision

authorizing waiver of certain [‘criminal and related grounds’

referenced in] this paragraph, see subsection (h).”).

     Here, USCIS determined that Mr. Ledesma Paredes was

inadmissible to the U.S. based on three grounds, determinations

which he does not now contest and never disputed in his various

appeals to the AAO. See, e.g., Ex. 2 to Compl., ECF No. 1-3 at

6; Ex. 5 to Compl., ECF No. 1-3 at 39. First, USCIS determined

that Mr. Ledesma Paredes was inadmissible under 

(a)(2)(A) because of his prior convictions for possession of

a controlled substance and a CIMT, which it determined was a

“violent or dangerous” crime. See Ex. 2 to Compl., ECF No. 1-3

at 5-7. Second, USCIS determined that Mr. Ledesma Paredes was

inadmissible under 

(a)(9)(B)(i) because of his

unlawful presence in the U.S. 

. Finally, USCIS

determined that Mr. Ledesma Paredes was inadmissible under 8

                               

(a)(9)(A)(ii) because of his prior removal from the

U.S. See Ex. 3 to Compl., ECF No. 1-3 at 12-13. Mr. Ledesma

Paredes therefore applied to USCIS for an I-601 waiver of

inadmissibility, with each of his three grounds of

inadmissibility corresponding to three potential grounds for a

waiver under the INA: (1) 

(h), providing for

discretionary waivers of inadmissibility based on drug

possession violations and CIMTs; (2) 

(a)(9)(B)(v), providing for discretionary waivers of

inadmissibility based on unlawful presence; and (3) 

(a)(9)(A)(iii), providing for discretionary permission to

reapply for admission for foreign nationals previously removed

from the U.S. See Exs. 2 & 3 to Compl., ECF No. 1-3 at 5-6, 12.

     In their Amended Complaint, Plaintiffs only challenge

USCIS’ decision not to waive Mr. Ledesma Paredes’ first ground

of inadmissibility based on his CIMT conviction under 

(h). 6 Defs.’ Mem., ECF No. 21-1 at 14; see generally Am.




6 As Defendants state, since “the bulk of [Plaintiffs’] complaint
attack[s] the basis for USCIS’s decision to deny [Mr. Ledesma
Paredes] a waiver of inadmissibility based on his criminal
history[,]” “[i]t does not appear that Plaintiffs specifically
challenge USCIS’s separate decision not to waive [Mr. Ledesma
Paredes’] inadmissibility for unlawful presence or deny his
application for permission to reapply for admission following
his removal.” Defs.’ Mem., ECF No. 21-1 at 14 n.4. However,
USCIS concedes that its decision not to waive inadmissibility
based on Mr. Ledesma Paredes’ unlawful presence and prior order
of removal “was solely because [he] was unable to obtain a
                                25
Compl., ECF No. 19. They argue that 

(a)(2)(B)(i)

does not apply to waivers of inadmissibility because section

1252 only “concerns review of removal orders[,]” as demonstrated

by “[t]he very title of the statute”—“Judicial review of orders

of removal”—and by alleged “specific indication[s]” of

congressional intent to limit the scope of this provision “to

review of removal orders.” See Pls.’ Opp’n, ECF No. 22-2 at 7-9.

     The Court rejects Plaintiffs’ first argument regarding the

determinative effect of section 1252’s title because it is

directly contradicted “by the plain meaning of the statute.”

Abuzeid, 

. Section 1252(a)(2)(B) unambiguously

states that the jurisdictional bar on judicial review applies

“regardless of whether the judgment, decision, or action is made

in removal proceedings[.]” 

(a)(2)(B). It also

specifically refers to agency decisions “regarding the granting

of relief under section 1182(h),” 

 § 1252(a)(2)(B)(i); which

Plaintiffs concede is the statutory provision governing USCIS’

discretionary decision whether to grant or deny inadmissibility

waivers regarding an applicant’s criminal history, see Pls.’

Opp’n, ECF No. 22-2 at 8. As Defendants state, and the Court

agrees, “[t]his unambiguous text clearly controls over

Plaintiffs’ sweeping inference from the six words that comprise



waiver of inadmissibility based on his criminal history.” Id.
(citing Ex. 3 to Compl., ECF No. 1-3 at 11-13).
                               26
the title of the section.” Defs.’ Reply, ECF No. 25 at 4; see

also Brotherhood of R.R. Trainmen v. Balt. & Ohio R.R. Co., 

, 

, 

 (1947) (“That the

heading of [the section] fails to refer to all the matters which

the framers of that section wrote into the text is not an

unusual fact. . . . [H]eadings and titles are not meant to take

the place of the detailed provisions of the text.”).

     The Court also rejects Plaintiffs’ second argument

regarding congressional intent, where they contend that “[i]f

Congress had desired” for the jurisdictional bar in 

(a)(2)(B)(i) to apply outside the context of removal orders,

then it would have repeated the same language “in the sections

of law that allow for waivers under 

.” Pls.’

Opp’n, ECF No. 22-2 at 8. While Plaintiffs claim that the

jurisdictional bar does not appear in the “broad language under”

section 1182, id.; Defendants have correctly noted that Ҥ

1182(h) does in fact repeat the jurisdictional bar in §

1252(a)(2)(B)(i)” and “says in no uncertain terms: ‘No court

shall have jurisdiction to review a decision of the Attorney

General to grant or deny a waiver under this subsection[,]’”

Defs.’ Reply, ECF No. 25 at 4-5 (quoting 

(h)(2)).

Plaintiffs fail to acknowledge this language, instead contending

that it would have been “clearer” if Congress had “simply



                               27
plac[ed]” an equivalent “broad judicial bar” in section 1182,

which is in fact the case. Pls.’ Opp’n, ECF No. 22-2 at 8.

     If there was any remaining doubt that the Court lacks

jurisdiction to review a USCIS decision to deny an application

for a waiver of inadmissibility, the D.C. Circuit has recently

settled the issue. In Abuzeid v. Mayorkas, 

 (D.C.

Cir. 2023), the D.C. Circuit analyzed 

(a)(2)(B)(i) not in the context of USCIS’ denial of an

application for a waiver of inadmissibility, but in the context

of USCIS’ denial of an application to adjust immigration status

to that of a lawful permanent resident under section 1255 of the

INA. See 

. In that case, USCIS had determined that

the plaintiff was ineligible for adjustment of status and denied

his application, leading the plaintiff and his U.S. citizen

spouse to file suit in this District Court, challenging USCIS’

decision as “arbitrary and capricious, an abuse of discretion,

and contrary to law, in violation of the APA.” See 

 at 580-

83. The government defendants moved to dismiss the Abuzeid

plaintiffs’ amended complaint for lack of subject-matter

jurisdiction under 

(a)(2)(B)(i), and another

judge from this court granted that motion. 

. On

appeal, the D.C. Circuit affirmed that decision, concluding that

section 1252(a)(2)(B)(i) “squarely applie[d]” and that “[t]he

statute stripped the district court of subject-matter

                               28
jurisdiction over appellants’ claims under the APA.” 

 at 583-

84.

      In reaching this conclusion, the D.C. Circuit analyzed

Patel v. Garland, 

, 

, 

 (2022), in which the Supreme Court concluded that, pursuant

to 

(a)(2)(B)(i), “federal courts lack

jurisdiction to consider ‘any authoritative decision’ by USCIS

that applies § 1255 and other enumerated provisions [of the

INA.]” Abuzeid, 

 (citing Patel, 

). The Supreme Court examined the “text and context” of

section 1252(a)(2)(B)(i) and concluded that “[t]he provision

does not restrict itself to certain kinds of decisions. Rather,

it prohibits review of any judgment regarding the granting of

relief under” the enumerated INA provisions. Patel, 

 (emphasis in original). The Supreme Court emphasized

that “the word ‘any’ has an expansive meaning” and “means that

[section 1252(a)(2)(B)(i)] applies to judgments ‘of whatever

kind’ under [those provisions], not just discretionary judgments

or the last-in-time judgment.” 

 (citations and some internal

quotation marks omitted). Based on the Supreme Court’s

reasoning, the D.C. Circuit concluded that “Patel precludes

review of all kinds of agency decisions that result in the

denial of relief — whether they be discretionary or

nondiscretionary, legal or factual[,]” and further concluded

                                29
that “the relevant jurisdiction-stripping language applies

‘regardless of whether the judgment, decision, or action is made

in removal proceedings.’” See Abuzeid, 

 (quoting

(a)(2)(B) and explaining that “[t]he ‘regardless’

clause ‘makes clear that the jurisdictional limitations imposed

by § 1252(a)(2)(B) also apply to review of agency decisions made

outside of the removal context’” (citation omitted)).

     Applied here, the Court again concludes that consideration

of Plaintiffs’ claims under the APA “is foreclosed by a

straightforward application of” section 1252(a)(2)(B)(i). Id. at

583. Although Abuzeid analyzed an application for adjustment of

status under 

, the same logic applies to an

application for a waiver of inadmissibility under 

(h), as both provisions of the INA are enumerated in section

1252(a)(2)(B)(i). That section unambiguously states that “no

court shall have jurisdiction to review . . . any judgment

regarding the granting of relief under section 1182(h) . . . or

1255 of this title[.]” 

(a)(2)(B)(i).

     Other U.S. courts of appeal have reached the same

conclusion that the federal courts lack subject-matter

jurisdiction to review any discretionary decision regarding a

foreign national’s application for a waiver of inadmissibility.

See, e.g., Munis v. Holder, 

 (10th Cir. 2013)

(concluding that “the hardship determination required for a

                               30
waiver of inadmissibility under § 1182(h)(1)(B) is an

unreviewable discretionary decision”); Berlus v. Napolitano, 

 (3d Cir. 2012) (“Section 1182(h) of title 8

commits the decision to grant or deny a waiver of

inadmissibility to the Attorney General and § 1252(a)(2)(B) of

that title precludes judicial review of such determinations.”);

Gahamanyi v. Holder, 

 (8th Cir. 2009) (“We

lack jurisdiction to review [a] denial of a section 1182(h)

waiver of inadmissibility[.]”); Rodrigues-Nascimento v.

Gonzales, 

 (1st Cir. 2007) (same); Bugayong v.

INS, 

 (2d Cir. 2006) (same); Jean v. Gonzales,

, 480 (4th Cir. 2006) (same).

     Plaintiffs lastly argue that if 

(a)(2)(B)(i)

was not limited to “review of decisions in a removal case[,]”

then applicants such as Mr. Ledesma Paredes would be left

“unable to challenge constitutional or other questions of law

once the agency has made a decision.” Pls.’ Opp’n, ECF No. 22-2

at 9. However, the Supreme Court explained in Patel that the

jurisdictional “bar has an important qualification: ‘Nothing in

subparagraph (B) . . . shall be construed as precluding review

of constitutional claims or questions of law raised upon a

petition for review filed with an appropriate court of appeals

in accordance with this section.’” 

 (quoting 

(a)(2)(D)). The D.C. Circuit also explained that

                               31
“[t]he only remaining avenue for relief from a denial of [a

waiver of inadmissibility] is provided by § 1252(a)(2)(D), which

allows review of ‘constitutional claims or questions of law’

raised in removal proceedings[.]” See Abuzeid, 

-

86 (“Despite understanding that its ruling might lead to the

insulation of USCIS decisions from judicial review, the

[Supreme] Court [in Patel] declined to interpret the statute to

avoid that very consequence, stating that ‘policy concerns

cannot trump the best interpretation of the statutory text.’”

(quoting Patel, 

)). Plaintiffs’ argument is

therefore meritless.

     Accordingly, the Court concludes that pursuant to the

jurisdictional bar provided in 

(a)(2)(B)(i), it

lacks subject-matter jurisdiction to review USCIS’ discretionary

decision to deny Mr. Ledesma Paredes’ application for a waiver

of inadmissibility based on his criminal history, and it must

dismiss Plaintiffs’ claims under the APA. 7




7 In their opposition brief, Plaintiffs argue that if the Court
were to find the question of jurisdiction a “close question,”
then it “should defer any decision on jurisdiction until the
parties have each presented their cases.” Pls.’ Opp’n, ECF No.
22-2 at 10. Given the above analysis, the Court does not find
the question of subject-matter jurisdiction to be a “close
question,” and it rejects Plaintiffs’ invitation to defer its
decision on jurisdiction, as “[f]ederal courts must determine
that they have jurisdiction before proceeding to the merits.”
Lance v. Coffman, 

, 

, 

 (2007) (citation omitted).
                                32
             2. The Jurisdictional Bar Provided in 

(a)(2)(B)(i) Applies to Discretionary and
                Non-Discretionary Agency Decisions Involving
                “Questions of Law”

     Plaintiffs argue that even if the jurisdictional bar in 

(a)(2)(B)(i) applies, their claims are not

precluded by it because “[d]iscretionary decisions are within

the Court’s jurisdiction when they include the application of a

legal standard, which is a ‘question of law.’” See Pls.’ Opp’n,

ECF No. 22-2 at 11-20 (arguing that discretionary decisions,

such as the decision to deny a waiver of inadmissibility,

“contain questions of fact and law”). They argue that

“[q]uestions of law can indeed be reviewed by courts,” 

; and that their Amended Complaint presents “[t]hree questions

of law” that they allege are reviewable “despite the

jurisdictional bar in 

(a)(2)(B)(i)[,]” see 

; Am. Compl., ECF No. 19 at 6 ¶ 19.

     First, Plaintiffs argue that it is a “question of law” as

to whether the AAO engaged in “an incorrect fact-based inquiry

[that] led to the [improper] application of 

(d)”

to Mr. Ledesma Paredes’ waiver application. Pls.’ Opp’n, ECF No.

22-2 at 13; Am. Compl., ECF No. 19 at 7-8 ¶¶ 21-23. They allege

that the AAO, in deciding to apply the “violent or dangerous”

standard set forth in 

(d) to Mr. Ledesma

Paredes’ assault conviction, incorrectly “look[ed] beyond the


                               33
[court] record to a police report” indicating that he brandished

a knife at another driver during the incident in question. See

Pls.’ Opp’n, ECF No. 22-2 at 13-15; Am. Compl., ECF No. 19 at 7-

8 ¶¶ 21-23. Second, Plaintiffs argue that it is a “question of

law” as to whether USCIS improperly applied 

(d)

against its own “policy and procedure” by assigning too much

weight to Mr. Ledesma Paredes’ lack of remorse for his crimes

while “ignor[ing] all positive evidence” of his rehabilitation,

good moral character, “and even the truth of what happened in

[his] criminal case[.]” See Pls.’ Opp’n, ECF No. 22-2 at 15-17;

Am. Compl., ECF No. 19 at 8-10 ¶¶ 24-29. Lastly, Plaintiffs

argue that it is a “question of law” as to whether USCIS “made a

complete divergence from prior decisions in its application of 

(d)” by deeming Mr. Ledesma Paredes’ crime to be

both “violent” and “dangerous,” especially since the record from

his criminal case allegedly did not describe any specific

physical injury to another person. See Pls.’ Opp’n, ECF No. 22-2

at 17-20; Am. Compl., ECF No. 19 at 10-11 ¶ 30.

     Defendants reject each of these three claims on the basis

that “Plaintiffs’ contention that the jurisdictional bar in §

1252(a)(2)(B)(i) does not apply to questions of law” is legally

flawed. Defs.’ Mem., ECF No. 21-1 at 16. The Court agrees. As

discussed above, the D.C. Circuit concluded in Abuzeid that 

(a)(2)(B)(i) precludes review of all agency

                               34
decisions, both discretionary and nondiscretionary, “legal or

factual,” “that result in the denial of relief.” 

. So too has the Supreme Court stated that the jurisdictional

bar in section 1252(a)(2)(B)(i) is not restricted “to certain

kinds of decisions” and precludes “review of any judgment

regarding the granting of relief under” the enumerated INA

provisions, including 

(h). Patel, 

 (emphasis in original); see also Jimenez Verastegui v.

Wolf, 

, 99 (D.D.C. 2020) (concluding that “it

is of no moment that USCIS’s judgment in refusing to grant [ ]

relief [from removal] turned on a legal interpretation” because

(a)(2)(B) “does not distinguish ‘between

judgments that are discretionary and judgments that are purely

legal’” (quoting Djodeir v. Mayorkas, 

(D.D.C. 2009))), appeal dismissed by Verastegui v. Wolf, No. 20-

5215, 

 (D.C. Cir. Dec. 11, 2020). Accordingly, it

is irrelevant that Plaintiffs have classified their claims as

“questions of law” because the Court still lacks subject-matter

jurisdiction to entertain them under the plain language of 

(a)(2)(B)(i).

     In any event, Defendants argue, and the Court agrees, that

“self-serving labels notwithstanding, [Plaintiffs’] challenges

do not present ‘questions of law,’ but instead seek to challenge

the very substance of the discretionary decision not to grant

                               35
[Mr. Ledesma] Paredes a waiver of inadmissibility[,]” Defs.’

Mem., ECF No. 21-1 at 16; by “target[ing] the agency’s weighing

and consideration of evidence,” Defs.’ Reply, ECF No. 25 at 6.

For example, questions as to whether the AAO appropriately

looked beyond the record to give “suspect” evidentiary weight to

a police report indicating Mr. Ledesma Paredes brandished a

knife, see Pls.’ Opp’n, ECF No. 22-2 at 14; whether it correctly

balanced and considered all the positive and negative evidence

in Mr. Ledesma Paredes’ case, see 

; and whether the

lack of serious physical injury to the other driver in the

altercation with Mr. Ledesma Paredes should negate the AAO

deeming his crime “violent or dangerous,” see 

;

although styled as “constitutional claims and questions of law,”

; are actually all questions that, “[s]tripped of

Plaintiffs[’] legal rhetoric,” “are not accurately characterized

as legal in nature[,]” Defs.’ Reply, ECF No. 25 at 6.

     Instead, they are more appropriately viewed as “evidentiary

and factual determinations [that] fall squarely within” USCIS’

discretionary authority to decide an application for a waiver of

inadmissibility, which is unreviewable by the Court. Id.; see,

e.g., Nasrallah v. Barr, 590 U.S. ---, 

,

 (2020) (noting that Ҥ 1252(a)(2)(B)[] states

that a noncitizen may not bring a factual challenge to orders

denying discretionary relief, including . . . certain

                               36
inadmissibility waivers”); Kucana v. Holder, 

, 247-

48, 

, 

 (2010) (concluding that

“substantive” decisions as to “whether aliens can stay in the

country or not[,]” including via “waivers of inadmissibility

based on certain criminal offenses, § 1182(h),” are “insulat[ed]

. . . from judicial review” under 

(a)(2)(B)(i));

Lemuz-Hernandez v. Lynch, 809 F.3d at 392, 393-94 (8th Cir.

2015) (concluding that claims that were “nominally a question of

law or constitutionality . . . actually amount[ed] to a

challenge to how the agency weighed the evidence” in reviewing

an application for cancellation of removal, which pursuant to

the jurisdictional bar in 

(a)(2)(B)(i), were

“outside [the court’s] jurisdiction to review”); Hassrouny v.

Holder, 

 (9th Cir. 2010) (“Hassrouny’s

contention that the [immigration judge] improperly weighed the

evidence in her case does not present a colorable constitutional

claim or question of law over which this court may exercise

jurisdiction.”); Palmer v. Att’y Gen. of the U.S., 

 (3d Cir. 2011) (“To the extent [the plaintiff] argues

that the [agency] incorrectly weighed the evidence because more

weight should have been given to the positive factors over the

other factors, [the Court] reiterate[s] that [it] lack[s]

jurisdiction to consider the [agency’s] exercise of

discretion.”); Mendez v. Holder, 

 (2d Cir.

                               37
2009) (stating that an agency “does not commit an ‘error of law’

every time an item of evidence is not explicitly considered or

is described with imperfect accuracy”).

     As a result, the Court rejects Plaintiffs’ contention that

they have alleged “an error of law” in USCIS’ and the AAO’s “use

and application of the standard in 

(d)[,]” Pls.’

Opp’n, ECF No. 22-2 at 12; as they cannot “us[e] the rhetoric of

a ‘constitutional claim’ or ‘question of law’ to disguise what

is essentially a quarrel about fact-finding or the exercise of

discretion,” see Barco-Sandoval v. Gonzales, 

(2d Cir. 2007) (explaining that “‘exceptional and extremely

unusual hardship’ determinations [under 

(d)] . .

. are discretionary judgments” over which courts cannot exercise

jurisdiction to review (citation and some internal quotation

marks omitted)); see also Velaquez v. Sessions, 

 (5th Cir. 2017) (concluding that a plaintiff may not

circumvent the jurisdictional bar in 

(a)(2)(B)

and “secure jurisdiction by simply framing as a legal issue his

challenge to the [agency’s] evaluation of the evidence in order

to cloak his request for review of a discretionary decision”);

Defs.’ Reply, ECF No. 25 at 6-8 (explaining why each of the

cases cited by Plaintiffs in their opposition brief to support

their contention that the application of the standard in 

(d) is a judicially reviewable question of law are

                               38
unavailing, as none of them imply that the Court may review

USCIS’ “actual weighing of the evidence or factual findings”). 8

     Plaintiffs next argue that the jurisdictional bar in 

(a)(2)(B)(i) is inapplicable here because they “are

asking that this Court pass judgment on if USCIS is complying

with its own procedures when it ignore[d] evidence completely”

and when it “made a complete divergence from prior [AAO]

decisions in its application of 

(d).” See Pls.’

Opp’n, ECF No. 22-2 at 15-20. Caselaw indicates that the

jurisdictional bar in 

(a)(2)(B)(i) does not

foreclose claims that the agency “is, as a matter of general

course, not complying with [its] policies and procedures.” See,

e.g., Damus v. Nielsen, 

 (D.D.C. 2018)


8 Even if, contrary to the above analysis, the Court were to
conclude that Plaintiffs had presented “constitutional claims
and questions of law,” see Pls.’ Opp’n, ECF No. 22-2 at 11-12; 

(a)(2)(D) specifically instructs them to raise
these issues in “a petition for review filed with an appropriate
court of appeals,” which this Court is not, see Abuzeid v.
Mayorkas, 

 (D.C. Cir. 2023) (“The only
remaining avenue for relief from a denial of [an application for
a waiver of inadmissibility] is provided by § 1252(a)(2)(D),
which allows review of ‘constitutional claims or questions of
law’ raised in removal proceedings, ‘upon a petition for review
[of a final order of removal] filed with an appropriate court of
appeals.’” (quoting 

(a)(2)(D))); Guerrero-
Lasprilla v. Barr, 589 U.S. ---, 

, 

 (2020) (concluding that in cases “involving aliens
who are removable for having committed certain crimes[,]” courts
of appeals (not district courts) have jurisdiction to consider
“constitutional claims or questions of law” under section
1252(a)(2)(D), which “includes the application of a legal
standard to undisputed or established facts”).
                                39
(applying this rule to the similar jurisdictional bar in 

(a)(2)(B)(ii)); Zadvydas v. Davis, 

, 

, 

 (2001) (concluding that

the similar jurisdictional bar in 

(a)(2)(B)(ii)

permits claims “challeng[ing] the extent of the [agency’s]

authority,” which “is not a matter of discretion”); R.I.L-R v.

Johnson, 

 (D.D.C. 2015) (allowing

plaintiffs to challenge, under a similar jurisdictional bar in 

(e), “an overarching agency policy as unlawful

under the INA,” which fell “outside the bounds of its delegated

discretion[,]” but concluding that the court lacked jurisdiction

to review the agency’s discretionary determinations).

     Here, Plaintiffs have attempted to evade 

(a)(2)(B)(i)’s jurisdictional bar on judicial review by

styling their claims as allegations of agency non-compliance

with USCIS’ policies, procedures, and precedent, but a close

look at the allegations in the Amended Complaint and the

arguments in Plaintiffs’ opposition brief reveals that they are

actually challenging the substance of the agency’s discretionary

decision-making. For example, although Plaintiffs claim they are

not “inquir[ing] into the specifics of if the AAO [was] correct

in its weighing of factors in its discretionary decision,” but

rather alleging that USCIS “misread[]” its own policies by

ignoring “positive evidence,” this argument boils down to

                               40
whether the AAO properly balanced evidence of Mr. Ledesma

Paredes’ rehabilitation and good moral character against

evidence of his lack of remorse for his crimes. See Pls.’ Opp’n,

ECF No. 22-2 at 16-17; Defs.’ Reply, ECF No. 25 at 3 (“The crux

of their argument is that USCIS put too much weight on evidence

unfavorable to [Mr. Ledesma] Paredes and not enough weight on

evidence favorable to [him].”). 9 Additionally, Plaintiffs merely

use prior AAO decisions to argue that the Court should “second-

guess USCIS’s discretionary” decision to deem Mr. Ledesma

Paredes’ crime “violent or dangerous,” Defs.’ Reply, ECF No. 25

at 10; based on the fact that his “case [was] one in which there

was no injury at all[,]” Pls.’ Opp’n, ECF No. 22-2 at 19. This

is precisely the type of judicial review that 

(a)(2)(B)(i) forecloses, as the Court is without

jurisdiction to assess “factual challenge[s]” to the denial of

inadmissibility waivers, Nasrallah, 

; or to




9 Furthermore, even drawing all inferences in Plaintiffs’ favor,
the exhibits to the Complaint negate their allegations that the
AAO “purposefully ignore[d] evidence,” conflated evidence of Mr.
Ledesma Paredes’ rehabilitation and remorse, or made a decision
that was “without rational justification” and based on fact-
finding that was “flawed by an error of law.” See Pls.’ Opp’n,
ECF No. 22-2 at 13, 16-17 (citations omitted); Ex. 5 to Compl.,
ECF No. 1-3 at 34-36 (recognizing “several favorable
considerations in this case, including [Mr. Ledesma Paredes’]
significant family ties in the [U.S.], [his] community and
employment ties in the [U.S.] the payment of taxes, and support
letters on his behalf[,]” but concluding that the negative
factors were “far more significant”).
                                41
“inquire into the specific strengths or weaknesses of the . . .

decisions under dispute,” Damus, 

.

     For all these reasons, the Court concludes that, pursuant

to the applicable jurisdictional bar in 

(a)(2)(B)(i), it is without subject-matter jurisdiction to

review USCIS’ decision to deny Mr. Ledesma Paredes’ application

for a waiver of inadmissibility; and it must dismiss Plaintiffs’

arbitrary and capricious claims under the APA, regardless of

whether those claims involve true “questions of law” as opposed

to questions regarding the agency’s evidentiary and fact-finding

determinations; and it therefore cannot proceed to analyzing the

merits of “the substance of USCIS’s discretionary denial of [Mr.

Ledesma Paredes’] waiver[.]” Defs.’ Mem., ECF No. 21-1 at 17. 10

       B. Plaintiffs Have Failed to Plead a Viable
          Constitutional Claim That 

(d) Should
          Be Void for Vagueness

     Plaintiffs next “attempt to invalidate the applicable

regulation[, 

(d),] altogether, arguing that it

is void for unconstitutional vagueness.” Defs.’ Reply, ECF No.

25 at 3; see Pls.’ Opp’n, ECF No. 22-2 at 20-23; Am. Compl., ECF


10Defendants provide further arguments as to why the Court
should “find Plaintiffs’ attacks on [USCIS’] decision to be
wholly without merit in every respect” should the Court have
concluded that it could exercise jurisdiction to consider them.
See Defs.’ Mem., ECF No. 21-1 at 17-18; Defs.’ Reply, ECF No. 25
at 8-10. Because it has determined that it lacks subject-matter
jurisdiction over Plaintiffs’ APA claims, the Court finds it
unnecessary to address Defendants’ additional merits arguments.
                                42
No. 19 at 2 ¶¶ 2-3, 11-15 ¶¶ 31-40. They argue that the phrase

“violent or dangerous,” as used in that regulation to describe

crimes that negate the favorable exercise of discretion on an

application for a waiver of inadmissibility, “is so vague that

its application is completely inconsistent . . . and gives no

guarantee that ordinary people have ‘fair notice’ of the conduct

that a statute [and its implementing regulation] proscribes.”

Pls.’ Opp’n, ECF No. 22-2 at 20 (citing Papachristou v. City of

Jacksonville, 

, 

, 

(1972)). Defendants argue that Plaintiffs’ constitutional claim

should be dismissed under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim, Defs.’ Mem., ECF No. 21-1

at 18; because “there is no unconditional vagueness in the term

‘violent or dangerous’ as used in § 212.7(d)[,]” Defs.’ Reply,

ECF No. 25 at 11.

     

(d) states that “[t]he Attorney General, in

general, will not favorably exercise discretion” to grant a

waiver of inadmissibility “in cases involving violent or

dangerous crimes, except in extraordinary circumstances, such as

. . . cases in which an alien clearly demonstrates that the

denial of the application . . . would result in exceptional and

extremely unusual hardship.” In support of their argument that

the phrase “violent or dangerous” as used by 

(d)

is unconstitutionally vague, Plaintiffs cite to the Supreme

                               43
Court’s decision in Sessions v. Dimaya, 584 U.S. ---, 

, 

 (2018), arguing that the issues here are

“similar to the issues brought under” that case. Pls.’ Opp’n,

ECF No. 22-2 at 20. Defendants counter that “Dimaya does not

apply here[,]” Defs.’ Mem., ECF No. 21-1 at 19; and that since

Plaintiffs have “present[ed] no other authority in support of

their position[,]” their constitutional claim must be dismissed,

Defs.’ Reply, ECF No. 25 at 11.

     In Dimaya, the Supreme Court analyzed the definition of the

term “crime of violence” appearing in a statutory residual

clause, 

(b), as incorporated into the definition

of an “aggravated felony” in section 101(a)(43)(F) of the INA (

(a)(43)(F)). 

. Prior to the

Supreme Court’s decision in Dimaya, the residual clause in 

 defined “crime of violence,” in part, as an offense

“‘that, by its nature, involves a substantial risk that physical

force against the person or property of another may be used in

the course of committing the offense.’” 

 at 1211 (quoting 

(b)). To determine whether a crime met section

16(b)’s residual definition, courts were required to employ a

“categorical approach,” which “turns on the ‘nature of the

offense’ generally speaking[,]” or “[m]ore precisely, . . .

whether ‘the ordinary case’ of an offense poses the requisite

risk[,]” i.e., the possible use of physical force. 

 (quoting

                                  44
James v. United States, 

, 

, 

 (2007)). However, after analyzing the residual

clause defining a “crime of violence,” the Supreme Court

concluded the clause “could not pass constitutional muster” and

must be void for vagueness because of: (1) the unpredictability

involved in ascertaining “the conduct entailed in a crime’s

‘ordinary case[;]’” and (2) the “uncertainty about the level of

risk that makes a crime ‘violent.’” Id. at 1214-16.

     Plaintiffs argue that “if the Supreme Court can find part

of [

(b)] void for vagueness because of the

inconsistency in application[,] then it stands to reason that

the same can be said for 

(d).” Pls.’ Opp’n, ECF

No. 22-2 at 20. The Court disagrees. First and foremost, in

Dimaya, the Supreme Court did not address the definition of a

“violent or dangerous” crime in 

(d), instead

limiting its focus to 

(b)’s residual definition of

a “crime of violence.” Second, the Supreme Court did not

conclude that the phrase “crime of violence” itself was

unconstitutionally vague but rather that 

(b)’s

residual clause containing that definition was

unconstitutionally vague. Here, there is no analogous concern,

as 

(d) “refers only to ‘violent or dangerous

crime[s]’ with no residual definition like that disapproved in

Dimaya[.]” Defs.’ Mem., ECF No. 21-1 at 7.

                               45
     Third, the Court concludes that the term “crime of

violence” used in 

(b) is distinct from the phrase

“violent or dangerous crime[]” used in 

(d). As

the AAO explained in its September 11, 2017 denial of Mr.

Ledesma Paredes’ I-601 application, although “[t]he words

‘violent’ and ‘dangerous’ and the phrase ‘violent or dangerous

crimes’ are not further defined in the regulation or caselaw[,]

. . . defining and applying the ‘violent or dangerous crime’

discretionary standard is distinct from [a] determination that a

crime is [a ‘crime of violence’ and therefore] an aggravated

felony[.]” Ex. 2 to Compl., ECF No. 1-3 at 6 (citing Waiver of

Criminal Grounds of Inadmissibility for Immigrants, 

, 78,677-78 (Dec. 26, 2002) (to be codified at 8 C.F.R.

pt. 212)). Pursuant to its discretionary authority, the AAO

defines “violent or dangerous” “according to the ordinary

meanings of those terms[,]” see 

 (defining “violent”

and “dangerous” according to the definitions in Black’s Law

Dictionary (9th ed. 2009)); and is “not limited to a categorical

inquiry but may consider both the statutory elements and the

nature of the actual offense[,]” 

 at 7 (citing Torres-

Valdivias v. Lynch, 

 (9th Cir. 2015); Waldron

v. Holder, 

 (8th Cir. 2012)). 11 Therefore, as


11Plaintiffs argue that prior AAO decisions have “almost always
include[d]” language that “the definition of a crime of violence
                                46
Defendants correctly explain, 

(d) “does not

present the same vagueness problem identified in Dimaya because

the term ‘violent or dangerous crime’ is not defined,” similar

to a “crime of violence,” “to require a categorical approach

whereby the decisionmaker must determine an ‘ordinary case’ of a

given class of crimes [and whether they] pose[] a substantial

risk of physical force being applied against a person or

property.” Defs.’ Reply, ECF No. 25 at 11 (citing Dimaya, 

). 12

     Here, the AAO determined that the heightened discretionary

standard under 

(d) applied to Mr. Ledesma

Paredes and required the denial of his waiver application

because “the specific circumstances and nature as well as the

statutory elements of [his] offense” made the crimes underlying

his convictions for aggravated assault with a deadly weapon,



found in 

 [can be used] as guidance in determining
whether a crime is a violent crime under 

(d)[.]”
Pls.’ Opp’n, ECF No. 22-2 at 20-21. However, they cite no
authority to support this contention, and this language does not
appear in any of the AAO decisions issued to Mr. Ledesma
Paredes. See Exs. 2 & 5 to Compl., ECF No. 1-3 at 5-9, 32-41.
The only place the Court found language similar to that quoted
by Plaintiffs is in Exhibit 4 to the Complaint, which is a
redacted copy of an AAO decision in another individual’s case
from May 27, 2010. See Ex. 4 to Compl., ECF No. 1-3 at 23. Given
that this AAO opinion is unrelated to Plaintiffs’ case, the
Court concludes that this argument is unpersuasive.
12 Plaintiffs argue that “[o]ne would assume that . . . the

government would reserve use of 

(d) for the most
heinous crimes[.]” Pls.’ Opp’n, ECF No. 22-2 at 22. The Court is
unpersuaded by this argument.
                               47
battery, and throwing a deadly missile at an occupied vehicle

both “violent” and “dangerous”—“violent” because he threatened

another person with a knife and threw a heavy object at that

individual, and “dangerous” because the brandishing of any

weapon in an altercation, especially one in a moving motor

vehicle on a roadway, is dangerous. Exs. 2 & 5 to Compl., ECF

No. 1-3 at 7, 35. Because neither the language of 

(d) nor the AAO’s application of that regulation to the

facts of Mr. Ledesma Paredes’ case involved the “ordinary case”

inquiry that Dimaya found to be unconstitutionally vague, the

Court rejects Plaintiffs’ attempt at an analogous application of

Dimaya to the instant case. 13 See Defs.’ Mem., ECF No. 21-1 at 19

(explaining that Mr. Ledesma Paredes was subjected to 

(d) for “his actual crimes that were violent and dangerous”

and “not because the ‘ordinary case’ of the crimes for which he

was convicted present a ‘substantial risk’ of violence”); Defs.’

Reply, ECF No. 25 at 11 (arguing that “[t]here [was] no




13Plaintiffs argue that “the language of the [regulation] itself
makes it unclear when the standard will apply” because of the
wording “in general.” Pls.’ Opp’n, ECF No. 22-2 at 23; see 

(d) (“The Attorney General, in general, will not
favorably exercise discretion . . . with respect to immigrant
aliens who are inadmissible . . . in cases involving violent or
dangerous crimes[.]” (emphasis added)). For the above reasons,
the Court is unpersuaded by this argument, and it also rejects
Plaintiffs’ contention that the wording “in general” makes the
regulation “illegal.” Pls.’ Opp’n, ECF No. 22-2 at 23.
                                48
vagueness” in the AAO’s application of the facts of Mr. Ledesma

Paredes’ case to the phrase “violent or dangerous”).

     Additionally, the Court agrees with Defendants’ argument

that 

(d) is not unconstitutionally vague because

the regulation provides “fair notice” of the underlying conduct

proscribed by statute that would lead the Attorney General to

find an offense “violent or dangerous” and not favorably

exercise discretion in granting a waiver of inadmissibility. See

Defs.’ Mem., ECF No. 21-1 at 20; Defs.’ Reply, ECF No. 25 at 11;

see also Papachristou, 

 (concluding that an

ordinance was “void for vagueness” because it “fail[ed] to give

a person of ordinary intelligence fair notice that his

contemplated conduct [was] forbidden by the statute” (citation

and internal quotation marks omitted)). Here, the underlying

conduct proscribed by statute that rendered Mr. Ledesma Paredes

inadmissible was his commission of a “crime involving moral

turpitude,” see 

(a)(2)(A)(i)(I); a term which the

Supreme Court has already analyzed and determined is not

unconstitutionally vague, see Jordan v. De George, 

, 

, 

 (1951) (concluding that

there is no “trace of judicial expression which hints that the

phrase [“CIMT”] is so meaningless as to be a deprivation of due

process”). Accordingly, since the underlying conduct—the grounds

of inadmissibility themselves—are not unconstitutionally vague,

                               49
neither can it be determined that the guiding standard in 

(d) is unconstitutionally vague, as the regulation

is used by the Attorney General (and USCIS as his designee) to

exercise discretion to waive those grounds of inadmissibility.

See Defs.’ Mem., ECF No. 21-1 at 20. As Defendants argue, Mr.

Ledesma Paredes therefore “cannot claim that he lacked the

requisite notice of the sort of conduct that would render him

inadmissible.” 

     Finally, in support of its conclusion, the Court notes that

several U.S. courts of appeal have previously concluded that the

heightened discretionary standard in 

(d) used in

determining whether to waive inadmissibility based on “violent

or dangerous crimes” is a valid exercise of the Attorney

General’s authority. For example, the Court of Appeals for the

Ninth Circuit has concluded that “8 C.F.R. § 212.7(d) is a

permissible exercise of the Attorney General’s authority and

[that] the regulation may be applied to convictions that became

final before the effective date of the regulation.” Mejia v.

Gonzales, 

 (9th Cir. 2007). The Courts of

Appeal for the Fifth and Seventh Circuits both affirmed use of

the standard articulated in section § 212.7(d) before it was

formally codified. See Jean v. Gonzales, 

(5th Cir. 2006) (concluding that “the Attorney General acted in

his broad, discretionary authority when he denied [the

                               50
plaintiff’s] waiver application based on a “heightened ‘extreme

hardship’ standard” applied to immigrant applicants who engaged

in “dangerous or violent crimes”); Ali v. Achim, 

 (7th Cir. 2006) (concluding that “the Attorney General

did not exceed his statutory authority when he articulated the

heightened waiver standard . . . for violent or dangerous

criminal refugees”), cert. granted, 

, 

, 

 (2007), and cert. dismissed, 

, 

, 

 (2007); see also Rivas-

Gomez v. Gonzales, 

 (9th Cir. 2007)

(stating that “the Attorney General has broad discretion to

grant or deny waivers” and that the heightened waiver standard

established to govern the exercise of this discretion “for

aliens convicted of violent or dangerous crimes is rationally

related to the national immigration policy of not admitting

aliens who would be a danger to society”). Although these courts

were not similarly assessing a constitutional void for vagueness

challenge to 

(d), their decisions support this

Court’s conclusion that the regulation should not be

invalidated.

     For all the above reasons, the Court concludes that

Plaintiffs have failed to plead a viable constitutional claim

that 

(d) should be declared void for vagueness,

and it dismisses that claim for failure to state a claim.

                               51
  V.     Conclusion

       For the foregoing reasons, the Court GRANTS Defendants’

Motion to Dismiss, ECF No. 21; and DISMISSES Plaintiffs’ Amended

Complaint, ECF No. 19. An appropriate Order accompanies this

Memorandum Opinion.


       SO ORDERED.


       Signed:   Emmet G. Sullivan
                 United States District Judge
                 December 14, 2023




                                 52