Tianshu Cheng v. USCIS

Background

Tianshu Cheng sued U.S. Citizenship and Immigration Services (USCIS) and Kenneth T. Cuccinelli, in his official capacity as Acting Director of USCIS. Cheng alleged that USCIS violated the Administrative Procedure Act by denying his application for an Employment Authorization Document under the STEM Optional Practical Training program.

USCIS initially denied the application after determining that Cheng had lost his student status because he had applied for and received an H-1B work permit. Cheng alleged that he had not lost student status because he had not completed consular processing and the H-1B work permit had not been activated. He also alleged that USCIS acted contrary to its ordinary practice by denying the application without allowing him to supplement or clarify the record.

USCIS reopened the case and approved the application on April 22, 2020. After that approval, Cheng amended his complaint. In his Second Amended Complaint, he challenged a 2018 USCIS policy memorandum that rescinded a 2013 memorandum. Cheng alleged that the 2018 memorandum allowed USCIS to deny immigration-benefit applications without giving applicants an opportunity to provide additional information, and that adopting and enforcing the memorandum was arbitrary and contrary to law.

Cheng also alleged that the initial denial caused him to lose student status and caused other injuries that were not corrected when USCIS approved his application. He sought declarations about his immigration status and work authorization, as well as an injunction barring the defendants from applying the 2018 memorandum to future applications.

Jurisdictional standards

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal for lack of subject-matter jurisdiction. They argued that Cheng’s claims were moot and that he lacked Article III standing.

Standing requires a plaintiff to show an actual injury, a connection between that injury and the defendant’s conduct, and a likelihood that a court decision can remedy the injury. For an injunction addressing future conduct, the plaintiff must also show a concrete harm and a real and immediate threat of being harmed again. A possible or hypothetical future injury is not enough.

A case is moot when the dispute is no longer live or the parties no longer have a legally recognized interest in the outcome. The court also described a narrow exception for disputes capable of repetition but likely to end before review, which requires a demonstrated probability that the same controversy will recur involving the same parties.

Court’s analysis

The court concluded that Cheng had not shown that a declaration invalidating the 2018 memorandum would remedy any past injury, including harm allegedly caused by a period of unemployment. The defendants had granted the STEM Optional Practical Training permit, and Cheng did not allege that he had exceeded the amount of unemployment allowed by regulation. His concern was that the unemployment period might count against him later, but the court found that invalidating the memorandum would not redress the past harms he identified.

The court also rejected Cheng’s request for an injunction concerning future applications. Although Cheng provided more detail about when he might submit another application, the court found that he had not shown a certainly impending threat that the defendants would apply the 2018 memorandum in a way that would result in denial of a future application. The court further noted that Cheng had not shown why such a future denial would evade review.

To the extent Cheng sought relief under the Declaratory Judgment Act, the court found that he had not shown an actual controversy rather than a hypothetical future dispute.

Disposition

Judge Jeffrey White granted the defendants’ motion to dismiss, without prejudice, for lack of jurisdiction. The court stated that it would enter a separate judgment and directed the clerk to close the file.