Liu v. U.S. Department of State — Entry #27: Memorandum Opinion and Order Granting 23 Motion to Dismiss Second Amended Complaint, filed by Laura B Zuchowski, Alejandro Mayorkas, US Department of Homeland…

Case 3:24-cv-00298-G      Document 27    Filed 09/26/25    Page 1 of 13    PageID 320


                   IN THE UNITED STATES DISTRICT COURT
                       NORTHERN DISTRICT OF TEXAS
                             DALLAS DIVISION


SHIQI LIU,                                 )
                                           )
             Plaintiff,                    )
                                           )              CIVIL ACTION NO.
VS.                                        )
                                           )              3:24-CV-0298-G
U.S. DEPARTMENT OF HOMELAND                )
SECURITY, ET AL.,                          )
                                           )
             Defendants.                   )


                    MEMORANDUM OPINION AND ORDER

      Before the court is the defendants’ motion to dismiss the plaintiff’s second

amended complaint (docket entry 23). For the reasons set forth below, the motion is

granted.

                                 I. BACKGROUND

      The plaintiff Shiqi Liu (“Liu”) is a Chinese citizen. Second Amended

Complaint for Declaratory and Injunctive Relief Under the Administrative Procedure

Act and Under the Fifth Amendment to the U.S. Constitution 1 (“Complaint”)


      1
             The plaintiff misnumbered the paragraphs of her complaint. Compare,
e.g., Complaint at 10 (¶¶ 72-75) with Complaint at 11 (¶ 72, et seq.). Therefore, the
court references page numbers of the complaint.


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(docket entry 22) at 3. The defendants include (1) U.S. Department of Homeland

Security (“DHS”), (2) Alejandro Mayorkas, Secretary of DHS, (3) Ur Mendoza

Jaddou, Director of U.S. Citizenship and Immigration Services (“USCIS”), (4) Laura

B. Zuchowski, Director of USCIS Vermont Service Center, and (5) the United States

of America (collectively, “the defendants” or “the government”). Id. at 3-4.

      In 2017, Liu hired Oxbridge Immigration, an immigration agency, to assist her

with an employment-based green card application. Id. at 5. Oxbridge Immigration

“represented that they would find a U.S. employer to sponsor Ms. Liu for permanent

residence under the employment-based, third preference immigrant visa category

(‘EB-3 Green Card’).” Id.; see also id. at 6. Oxbridge Immigration assigned “Attorney

[Liyuan] Jiang” (“Jiang”) to handle Liu’s case. Id. at 6. Oxbridge Immigration

eventually matched Liu with Ruifu Auto USA Inc. (“Ruifu Auto USA”). Id. On

behalf of Liu, Ruifu Auto USA, through Oxbridge Immigration, filed (1) one Form

ETA-9089, Application for Permanent Employment Certification, with the U.S.

Department of Labor (“DOL”) in 2019 (certified on May 5, 2019), (2) one Form

I-140, Immigrant Petition for Alien Worker, with USCIS in 2019 (approved on

September 26, 2019), and (3) “at least two” Form I-485, Applications to Adjust

Status, with USCIS (rejected due to improper filing on November 21, 2021, and July

11, 2022). Id.


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      In February of 2022, Liu began working for Performance Architects, Inc.

(“Performance Architects”). Id. at 5. In June of 2023, USCIS approved a Form

I-129, Petition for a Nonimmigrant Worker, filed by Performance Architects on

behalf of Liu. See Form I-797C, Notice of Action, attached to Complaint as Exhibit A.

USCIS’s decision entitled Liu to classification as an H-1B nonimmigrant worker with

a validity period from June 16, 2023, to December 14, 2025, and allowed Liu to

execute a visa application before a consular officer. Id.; Defendants’ Motion to

Dismiss Plaintiff’s Second Amended Complaint and Brief in Support (“Motion”)

(docket entry 23) at 1-2.

      On July 1, 2023, Liu submitted a Form DS-160, Nonimmigrant Visa

Application,2 to the U.S. Embassy in Beijing, seeking an H-1B visa, and on July 21,

2023, Liu attended a visa interview with a consular officer at the embassy.

Complaint at 7. The consular officer refused Liu’s application under Immigration

and Nationality Act (“INA”) § 221(g), 8 U.S.C. § 1201(g). Motion at 2; see also id.

(“A consular officer, not USCIS, decides whether to issue a visa.”) (citing 8 U.S.C.

§ 1202(h); 22 C.F.R. § 41.121(a)).


      2
               “Form DS-160 is submitted electronically to the Department of State
website via the Internet. Consular Officers use the information entered on the
DS-160 to process the visa application and, combined with a personal interview,
determine an applicant’s eligibility for a nonimmigrant visa.”
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/forms/ds-1
60-online-nonimmigrant-visa-application.html (last accessed September 12, 2025).

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      On March 5, 2024, a special agent with the U.S. State Department’s

Diplomatic Security Service informed Liu’s counsel that Liu was under criminal

investigation for alleged immigration fraud related to her EB-3 Green Card

application and warned that an indictment against Liu was imminent. Complaint at

7; see also id. (The special agent “also informed [Liu’s counsel] that the alleged fraud

stemmed from Ms. Liu’s EB-3 Green Card application, and that was the reason for

the delay in visa processing.”).3 Liu contends that she unaware that Oxbridge

Immigration was engaged in fraudulent activity. Id. at 6.

      On May 31, 2024, following a request to Liu for a follow-up interview, a

consular officer from the U.S. Embassy in Beijing reinterviewed Liu. Id. at 7-8. The

officer questioned Liu regarding “her previous immigration related filings with USCIS

and DOL [and] the extent of her contact and communication with Attorney Jiang,

and the extent of financial transactions with Oxbridge and Attorney Jiang.” Id. at 8;


      3
                On March 19, 2024, an indictment was filed in the United States
District Court for the Southern District of New York against Jiang and Yu Cao
(“Cao”) for Conspiracy to Commit Immigration Fraud and Aggravated Identity
Theft. See Complaint at 6-7; see also U.S. v. Jiang, et al., No. 1:24-CR-0158-PKC
(S.D.N.Y.), Indictment (docket entry 2) ¶ 2 (“It was a part and an object of the
conspiracy that . . . the defendants, and others known and unknown, willfully and
knowingly did utter, use and attempt to use, possess, obtain, accept, and receive
visas, . . . and other documents prescribed by statute and regulation for entry into
and as evidence of authorized stay and employment in the United States, knowing
them to be forged, counterfeited, altered, and falsely made, and to have been
procured by means of false claims and statements . . . .”). On October 2, 2024, Cao
pleaded guilty to Conspiracy to Commit Immigration Fraud. See U.S. v. Jiang, et al.,
Docket Sheet. The criminal proceedings against Jiang continue. Id.

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see also id. at 7. The consular officer then informed Liu that her visa application

remained refused and that a finding of inadmissibility was entered against her under

INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), for attempting to obtain

admission to the United States by fraud or by willfully misrepresenting a material

fact in order to seek to procure a visa.4 Motion at 2; Visa Denial Worksheet, attached

to Complaint as Exhibit B (“This office regrets to inform you that your visa

application is refused because you have been found ineligible to receive a visa . . . .”).

As a result, Liu complains that she “has been permanently banned from [the United

States] without due process.” Complaint at 2.

       Liu alleges that, in violation of the Administrative Procedure Act (“APA”), 5

U.S.C. § 706, the inadmissibility decision “made by Defendants DHS and USCIS”

was both “arbitrary and capricious and not supported by substantial evidence in the

record” and made without observance of procedure required by law. Id. at 11-12.

Liu further contends that “[t]he lack of notice and the opportunity to respond to the

allegations against her before the inadmissibility determination was made violated

her rights to due process” under the Fifth Amendment to the U.S. Constitution. Id.


       4
             Title 8 U.S.C. § 1182(a)(6)(C)(i) provides that a foreign national who
“by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought
to procure or has procured) a visa, other documentation, or admission into the
United States or other benefit provided under this chapter is inadmissible.”

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at 12-13. Liu seeks declaratory, injunctive, and monetary relief, the latter including

costs and attorney’s fees. See id. at 13-14.

       The defendants argue that Liu lacks standing to bring this lawsuit, and that as

a result the court lacks subject matter jurisdiction. Motion at 4-6. Specifically, the

defendants assert that Liu has suffered no injuries that are fairly traceable to the

challenged actions of the defendants. Id. at 5-6; see also Defendants’ Reply Brief in

Support of Their Motion to Dismiss Plaintiff’s Second Amended Complaint

(“Reply”) (docket entry 25) at 1-6. Additionally, the defendants argue that the

doctrine of consular non-reviewability precludes judicial review over admissibility

determinations made by Executive Branch officials, and that Liu failed to state a

viable due process claim. Motion at 7-13; Reply at 6-11.

                                      II. ANALYSIS

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

       Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life

Insurance Company of America, 511 U.S. 375, 377 (1994); Owen Equipment and Erection

Company v. Kroger, 437 U.S. 365, 374 (1978). A federal court may exercise

jurisdiction over cases only as expressly provided by the Constitution and laws of the

United States. See U.S. CONST. art. III §§ 1-2; see also Kokkonen, 511 U.S. at 377.

Federal law gives the federal district courts original jurisdiction over “all civil actions

arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C.


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§ 1331. Moreover, a party seeking relief in a federal district court bears the burden

of establishing the subject matter jurisdiction of that court. United States v. Hays, 515

U.S. 737, 743 (1995); McNutt v. General Motors Acceptance Corporation of Indiana, Inc.,

298 U.S. 178, 189 (1936); Langley v. Jackson State University, 14 F.3d 1070, 1073 (5th

Cir.), cert. denied, 513 U.S. 811 (1994).

       Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes the dismissal

of a case for lack of jurisdiction over the subject matter. See FED. R. CIV. P. 12(b)(1).

A motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction

must be considered by the court before any other challenge because “the court must

find jurisdiction before determining the validity of a claim.” Moran v. Kingdom of

Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994) (internal citation omitted); see also

Ruhrgas AG v. Marathon Oil Company, 526 U.S. 574, 577 (1999) (“The requirement

that jurisdiction be established as a threshold matter . . . is inflexible and without

exception”) (citation and internal quotation marks omitted). On a Rule 12(b)(1)

motion, which “concerns the court’s ‘very power to hear the case . . . [,] the trial

court is free to weight the evidence and satisfy itself as to the existence of its power to

hear the case.’” MDPhysicians & Associates, Inc. v. State Board of Insurance, 957 F.2d

178, 181 (5th Cir.) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert.

denied, 454 U.S. 897 (1981)), cert. denied, 506 U.S. 861 (1992). Once jurisdiction is

challenged, the burden rests on the party seeking to invoke the court’s jurisdiction to


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prove that jurisdiction is proper. Boudreau v. United States, 53 F.3d 81, 82 (5th Cir.

1995), cert. denied, 516 U.S. 1071 (1996).

      Because the question of standing is an issue of subject matter jurisdiction, a

party may contest standing through a Rule 12(b)(1) motion to dismiss. See Little v.

Texas Attorney General, No. 3:14-CV-3089-D, 2015 WL 5613321, at *2 n.5 (N.D.

Tex. Sept. 24, 2015) (Fitzwater, J.) (citations omitted), aff’d sub nom., 655 Fed. Appx.

1027 (5th Cir. 2016) (per curiam). The “irreducible constitutional minimum of

standing” has three elements, and the party invoking federal jurisdiction bears the

burden of establishing each element. See Lujan v. Defenders of Wildlife, 504 U.S. 555,

561 (1992)). To establish standing under Article III then, a plaintiff must satisfy, at

minimum, three constitutional requirements: “injury in fact, a ‘fairly traceable’

causal link between that injury and the defendant’s conduct, and the likelihood that

the injury will be ‘redressed by a favorable decision.’” Cadle Company v. Neubauer,

562 F.3d 369, 371 (5th Cir. 2009) (citing Lujan, 504 U.S. at 560-61).

      A Rule 12(b)(1) motion on standing grounds can either facially or factually

challenge the complaint. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.

1981); see also Rapid Tox Screen LLC v. Cigna Healthcare of Texas Inc., No. 3:15-CV-

3632-B, 2017 WL 3658841, at *3 (N.D. Tex. Aug. 24, 2017) (Boyle, J.). A party

mounts a facial challenge when it files a 12(b)(1) motion without providing evidence.

MacKenzie v. Castro, No. 3:15-CV-0752-D, 2016 WL 3906084, at *2 (N.D. Tex.


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July 19, 2016) (Fitzwater, J.). A party mounts a factual challenge, by contrast, when

it provides evidence to support its motion to dismiss. Id. In either instance, whether

the challenge is facial or factual, the burden of proof remains on the party asserting

jurisdiction. See id. (quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir.

2001) (per curiam), cert. denied, 536 U.S. 960 (2002)). Moreover, while the burden is

on the party seeking to invoke the federal court’s subject matter jurisdiction to

establish the requisite standing requirements, that burden need be met only by a

preponderance of the evidence. See Hartford Insurance Group v. Lou-Con Inc., 293 F.3d

908, 910 (5th Cir. 2002) (per curiam).

       In this case, the defendants filed their Rule 12(b)(1) motion but failed to

produce any additional evidence to transform their challenge from facial to factual.

Therefore, as the Fifth Circuit concluded in Paterson, “[s]ince here we have only a

‘facial attack’ and not a ‘factual attack,’ [the court’s] review is limited to whether the

[Second Amended] [C]omplaint is sufficient to allege the jurisdiction.” Paterson, 644

F.2d at 523. If the allegations in the complaint, presumed true, sufficiently allege a

claim for relief, then the complaint stands and the court must entertain the suit. See

Rapid Tox Screen, 2017 WL 3658841, at *3 (citing Paterson, 644 F.2d at 523); see also

Crowder v. Village of Kaufman, Ltd., 3:09-CV-2181-M, 2010 WL 2710601, at *1 (N.D.

Tex. July 7, 2010) (Lynn, J.) (“A 12(b)(1) motion that challenges standing based on


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the pleadings is considered a facial attack, and the court reviews only the sufficiency

of the allegations in the pleading, presuming them to be true.”).

                                     B. Application

       Under the APA, “[a] person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action within the meaning of a relevant

statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. A “plaintiff has

standing only if” her injury is “fairly traceable to the defendant’s allegedly unlawful

conduct.” California v. Texas, 593 U.S. 659, 668-69 (2021); see also Lujan, 504 U.S.

at 560. The defendants assert that Liu lacks standing as she fails to allege an injury

fairly traceable to any unlawful conduct on their part, and that Liu’s “bare

allegations” are insufficient to establish the requisite traceability, thereby depriving

Liu of standing and this court of jurisdiction. Motion at 5-6; see also id. at 5

(“[T]here is no dispute that a consular officer at the U.S. Embassy in Beijing – not

DHS – refused Liu’s visa application.”) (citing Complaint ¶¶ 23-24, 44, 46, 49; Visa

Denial Worksheet); Reply at 1-2.

       Liu alleges that “[i]t is Defendants, not the State Department, that have acted

unlawfully.” Plaintiff’s Opposition to Defendants’ Motion to Dismiss and Brief in

Support (“Response”) (docket entry 24) at 10. Liu maintains that she has “endured

significant harm due to the Defendants’ unlawful inadmissibility determination[,]

Complaint at 9 (emphasis added), and “[t]he injury at issue is not the visa denial, but


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Defendants’ unlawful dissemination of derogatory information[,]” Response at 10.

That is, Liu asserts that the “fraud determination, and the subsequent dissemination

of the derogatory information, are the basis of her injury – independent of any

consular decision.” Response at 12; see also id. at 11. Liu contends that DHS and

USCIS made the finding of inadmissibility “within the United States, without notice

or the opportunity to be heard” and seeks judicial review of the “DHS/USCIS”

decision. See Complaint at 11-12; Response at 12.

      Liu merely speculates, but offers no proof to show, that her “injuries stem from

Defendants’ dissemination of its inadmissibility finding to federal prosecutors and

the State Department[.]” Response at 11. Liu hypothesizes that “[s]ometime

between May 2019 and July 2024, . . . DHS[], through its agencies and officers

(collectively, “Defendants”), determined that . . . Liu[] was inadmissible to the

United States based on allegations of immigration fraud. . . . DHS then published

and disseminated the information to other federal agencies, including the

Department of State and the Department of Justice. This dissemination resulted in

the initiation of a criminal investigation against Ms. Liu and the denial of her H-1B

visa.” Complaint at 1; see also id. at 9 (“Upon information and belief, DHS

published and disseminated the inadmissibility determination to third-party agencies

and officers, namely the State Department’s Diplomatic Security Service and other

agents within the Department of Justice [which] led to a criminal investigation being


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opened against Ms. Liu by the Department of Justice and the denial of her visa

application by a consular officer.”). Liu admits that she “does not know which DHS

office or employee rendered the inadmissibility determination.” Id. at 8.

      On March 18, 2024, Liu filed a request under the Freedom of Information Act

(“FOIA”) with USCIS “to obtain documents and information that may shed light on

her immigration situation.” Id. at 9. Liu simply asserts that while USCIS has

provided a “portion” of Liu’s immigration file after the filing of her second amended

complaint on September 4, 2024, it has not produced documentation related to Liu’s

EB-3 Green Card application.5 Response at 3 n.1. As a result, Liu complains that

“USCIS’s failure to respond to Ms. Liu’s FOIA request leaves her without access to

the records that would further substantiate her claims . . . .” Id. at 7. The defendants

argue that “[i]f Liu disagrees with the scope of USCIS’s FOIA production, she has the

right to administratively appeal the FOIA determination, which she has not done.”

Reply at 5; see also 5 U.S.C. § 552(a)(6)(A). The court agrees. Liu has failed to

provide evidence that she appealed that FOIA determination or sued USCIS under

FOIA, seeking to compel disclosure of all records related to her request.

      Liu argues that “the Court can reasonably infer that DHS made the

admissibility determination and disseminated the derogatory information to other


      5
             Neither Liu’s FOIA request nor documents USCIS produced in response
to that request are in evidence.

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federal agencies.” See Response at 6 (emphasis added). Liu, however, has not

demonstrated an irreducible constitutional minimum of standing as her bare

assertions are insufficient to establish the requisite traceability. As the party with the

burden of proof, Liu has not shown that she has standing to bring this suit, and thus

that the court has subject matter jurisdiction over this case. Because Liu has the

burden of proving, by a preponderance of the evidence, that this court has subject

matter jurisdiction over her claims and has not done so, the court finds that Liu has

not met the requirements for Article III standing. Accordingly, the government’s

motion to dismiss Liu’s claims is granted. See FED. R. CIV. P. 12(h)(3).

                                  III. CONCLUSION

      For the foregoing reasons, the defendants’ motion to dismiss for lack of subject

matter jurisdiction is GRANTED. A judgment of dismissal without prejudice will be

entered separately.

      The plaintiff’s request for leave to amend her complaint is DENIED.

      SO ORDERED.

September 26, 2025.

                                         ___________________________________
                                         A. JOE FISH
                                         Senior United States District Judge


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