Plaintiffs-Appellants John Ayanbadejo and Felicia Malveaux Ayanbadejo filed this action against Defendants-Appellees Michael Chertoff, in his official capacity as Secretary of the Department of Homeland Security ("DHS"), and District Director Sharon A. Hudson of the United States Citizenship and Immigration Services ("USCIS"), which is part of DHS, and that agency, seeking declaratory, injunctive, and mandamus relief from adverse immigration decisions by these officials. As the district court incorrectly concluded that it lacked subject matter jurisdiction to review the denial of Felicia's I-130 visa petition, we reverse the decision of the district court granting the government's motion to dismiss and remand for a new trial.
I. Facts and Proceedings
John, a citizen of Nigeria, met Felicia, a United States citizen residing in Beaumont, Texas, during a visit to the United States on a tourist visa in December 1996. The couple married on February 10, 1997. Less than a month after their marriage, Felicia filed a Form I-130 "Petition for Alien Relative" to have John classified as an "immediate relative."
On December 5, 2000, after an investigation by the USCIS raised doubts about the validity of the Ayanbadejos' marriage, the USCIS issued a notice of intent to deny Felicia's I-130 petition and John's I-485 application.
When the USCIS denied the Ayanbadejos' I-130 petition and I-485 application based on its finding that their marriage was entered into for the purposes of circumventing immigration laws, the Ayanbadejos filed an appeal with the Board of Immigration Appeals ("BIA") of the United States Department of Justice. On June 16, 2005, the BIA affirmed the USCIS's decision without a written order. John subsequently filed a petition for review of the BIA's decision with us, which we dismissed for lack of jurisdiction.
The Ayanbadejos then filed a complaint in district court. The government filed a motion to dismiss for lack of subject matter jurisdiction,
The Ayanbadejos filed a motion to amend their complaint, in which they alleged that: (1) their constitutional rights had been violated when they were denied a full and fair hearing before the USCIS and BIA; (2) their rights under the Freedom of Information Act ("FOIA") had been violated when they requested, but did not receive, their immigration records within 30 days of filing a request, as required by FOIA; and (3) their rights under the International Covenant on Civil and Political Rights ("ICCPR") were violated by the errors and omissions of the USCIS and BIA.
The district court held that: (1) the immigration decisions involving the Ayanbadejos did not violate their constitutional rights because the correct standards were employed in determining that the couple failed to provide sufficient evidence that their marriage was bona fide; (2) the UCIS's denials of Felicia's I-130 petition and John's I-485 application were within its discretion and therefore not subject to judicial review; (3) the Ayanbadejos' FOIA claim was moot because the records they requested had been produced; and (4) their claim under the ICCPR did not present a cognizable cause of action. For
II. Standard of Review
We review de novo the district court's grant of a motion to dismiss under Rule 12(b)(1).
The Ayanbadejos raise three issues on appeal: (1) whether the district court erred in granting the government's motion to dismiss for lack of subject matter jurisdiction because § 1252(a)(2)(B) precluded its review of the Ayanbadejos' I-130 petition and I-485 application; (2) whether the court erred in denying the Ayanbadejos' motion to amend their complaint to include their FOIA and ICCPR claims; and (3) whether the court erred in denying the Ayanbadejos' motion for a new trial. Issues Two and Three are without merit, but our analysis of Issue One, which presents a matter of first impression, leads us to conclude that the district court did, in fact, have subject matter jurisdiction to review Felicia's I-130 petition, requiring us to reverse the district court's ruling and remand to the district' court for a new trial.
A. Subject Matter Jurisdiction
The Ayanbadejos contend that the district court incorrectly concluded that § 1252(a)(2)(B) divested it of the jurisdiction to hear their claims. We agree with the Ayanbadejos, at least in part. Our decision in Zhao v. Gonzales,
First, the district court correctly held that, under § 1252(a)(2)(B), it did not have jurisdiction to review the decisions to deny John's I-485 application because these determinations were "in the discretion of immigration officials acting under authority of the Attorney General. Section 1252(a)(2)(B)(ii) provides that "no court shall have jurisdiction to review ... any other decision or action of the Attorney General or Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security...."
Felicia's I-130 petition is a different story. Even though all judgments regarding relief under § 1255, including reviews of I-485 applications, are specifically categorized as discretionary and non-reviewable by § 1252(a)(2)(B)(i), I-130 petitions are authorized by § 1154(a)(1)(A)(i), not § 1255, and are not mentioned in § 1252(a)(2)(B)(i). We have not explicitly determined whether district courts have jurisdiction to review the denial of I-130 petitions, but in Zhao we reasoned that Congress included the phrase "specified under this subchapter" in § 1252(a)(2)(B)(ii) for the purpose of precisely identifying which discretionary decisions are beyond judicial review.
B. FOIA, ICCPR Claims
 The district court did not err in denying the Ayanbadejos' motion to amend their complaint to add their FOIA and ICCPR claims. "A party may amend its pleading once as a matter of course" at any time before a responsive pleading is served and, thereafter, only by leave of the court or written consent of the adverse party.
The Ayanbadejos also assert that the acts of the USCIS and BIA are continuous violations of the ICCPR, but the Supreme Court has explicitly held that this treaty does not create obligations enforceable in federal courts.
C. New Trial Motion
The Ayanbadejos contend that the district court erred in denying their motion for a new trial.
We hold that determinations pertaining to I-130 petitions are not precluded from review by courts pursuant to § 1252(a)(2)(B)(ii). The district court did not err in denying the Ayanbadejos' motion to amend their complaint to include their FOIA and ICCPR claims or in denying the Ayanbadejos' motion for a new trial. Although the district court correctly held that the denials of John's I-485 application by the USCIS and BIA were non-reviewable, the court's holding that it did not have subject matter jurisdiction to review Felicia's I-130 petition conflicts with the plain meaning of § 1252(a)(2)(B)(ii) and our decision in Zhao. The judgment of the district court is therefore REVERSED to the extent that it dismissed Felicia's I-130 petition for lack of jurisdiction and this case is REMANDED to the district court for further proceedings consistent with this opinion.