Leonard Avullija v. Director, Citizenship and Immigration Services

USCA11 Case: 21-13452 Date Filed: 06/23/2022 Page: 1 of 6 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-13452 Non-Argument Calendar ____________________ LEONARD AVULLIJA, ALBANA AVULLIJA, Plaintiffs-Appellants, versus DIRECTOR, CITIZENSHIP AND IMMIGRATION SERVICES, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, Defendants-Appellees, ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:20-cv-01356-MMH-JBT ____________________ USCA11 Case: 21-13452 Date Filed: 06/23/2022 Page: 2 of 6 2 Opinion of the Court 21-13452 Before JORDAN, NEWSOM, and BRASHER, Circuit Judges. PER CURIAM: Leonard and Albana Avullija appeal the dismissal of their complaint against the United States Citizens and Immigration Ser- vices under the Administrative Procedure Act, 5 U.S.C. §§ 706(1), (2)(A). The Avullijas argue that the district court erred by conclud- ing that it lacked subject-matter jurisdiction and by ruling that they failed to state a claim for relief. After careful consideration, we hold that the district court erred in concluding that it lacked jurisdiction to consider the Avullijas’ claim. We nonetheless affirm the court’s order dismissing the complaint because the Avullijas failed to state a claim upon which relief can be granted. I. Albana Avullija, a United States citizen, sought an immi- grant visa for her spouse, Leonard Avullija, a native and citizen of Albania. On June 21, 2016, the United States Citizenship and Immi- gration Services approved Albana’s petition to establish eligibility for a spousal visa. The National Visa Center forwarded the ap- proved petition to the United States Consulate in Tirana, Albania. After interviewing Leonard, the consular office denied his applica- tion based on two grounds of inadmissibility under the Immigra- tion and Nationality Act, 8 U.S.C. § 1101 et seq. First, the consular office found Leonard inadmissible under 8 U.S.C. § 1182(a)(4) be- cause he was “likely at any time to become a public charge.” USCA11 Case: 21-13452 Date Filed: 06/23/2022 Page: 3 of 6 21-13452 Opinion of the Court 3 Second, the consular officer found Leonard inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i), because he “by fraud or willfully misrep- resenting a material fact” sought to procure admission to the United States. On or about November 25, 2019, Leonard applied for a waiver under 8 U.S.C. § 1182(i), which permits the Attorney Gen- eral, “in the discretion of the Attorney General,” to waive inadmis- sibility under Section 1182(a)(6)(C) if “the refusal of admission to the United States . . . would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien . . . .” On July 2, 2020, USCIS denied the application, incorrectly stating that Leonard was found inadmissible under 8 U.S.C. § 1182(a)(9)(B)(i)(II) as a noncitizen who had previously resided in the United States unlawfully. However, the denial correctly stated that Leonard was also inadmissible under Section 1182(a)(4) be- cause he was likely to become a public charge, for which “there is no waiver for inadmissibility.” Thus, USCIS denied the waiver ap- plication because Leonard would remain inadmissible …

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