UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-CV-81692-RAR

JOSE EDGARD CASTILLO CASTILLO, et al.,

Plaintiffs,

v. 

UR MENDOZA JADDOU, Director, U.S. 

Citizenship and Immigration Services, et al., 

Defendants.

_______________________________________________/ 

ORDER GRANTING MOTION TO DISMISS

THIS CAUSE comes before the Court upon Defendants’ Motion to Dismiss for Lack of 

Subject Matter Jurisdiction in Light of Subsequent Administrative Developments (“Motion”), 

[ECF No. 12].

1

 The Court, having reviewed the Motion, the record, and being otherwise fully 

advised, it is 

ORDERED AND ADJUDGED that the Motion, [ECF No. 12], is GRANTED as 

explained herein. 

BACKGROUND

This case arises out of a decision issued by U.S. Citizenship and Immigration Services 

(“USCIS”) that denied Plaintiffs’ Form I-129 Petition for a Nonimmigrant Worker seeking E-2 

classification under 8 U.S.C. § 1101(a)(15)(E)(ii) and 8 C.F.R. § 214.2(e). See generally Compl. 

for Declaratory and Injunctive Relief (“Complaint”), [ECF No. 1]. On June 3, 2021, Plaintiffs 

filed their Form I-129 to request that Plaintiff Castillo Castillo be classified as an E-2 Treaty 

1

 Plaintiffs filed a Response to Defendants’ Motion to Dismiss (“Response”), [ECF No. 15]. The Court 

did not allow Defendants to file a Reply. See Paperless Order, [ECF No. 13]. Accordingly, the Motion is 

fully briefed and ripe for review.

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Investor due to his investment of $145,000 into Plaintiff PW Boca Properties LLC. Compl. ¶ 15; 

see also Form I-797C, [ECF No. 1-4]. According to the Complaint, Plaintiff Castillo Castillo 

acquired a 50% ownership interest in PW Boca Properties LLC by way of this investment. Compl. 

¶ 15. The other 50% of PW Boca Properties LLC is owned by New Winds, LLC (“New Winds”). 

Compl. ¶ 16. Plaintiff Castillo Castillo has no ownership interest in New Winds. Id.

USCIS issued a Request for Evidence (“RFE”) to Plaintiffs after they filed their petition. 

Compl. ¶17. In the RFE, USCIS asked Plaintiffs to provide evidence establishing the source of 

the funds New Winds invested into PW Boca Properties LLC. Compl. ¶ 18; see also Req. for 

Evid., [ECF No. 1-5], at 3. Plaintiffs, believing this request was made in error, responded to this 

portion of the RFE by claiming the regulations governing E-2 Treaty Investor status do not require 

an applicant to verify the source of the funds invested into an enterprise by other investors. Compl. 

¶ 19. USCIS then issued a decision (“Initial Decision”) and denied the petition on July 25, 2022, 

citing the fact that Plaintiffs did not provide evidence establishing the source of the funds invested 

by New Winds. See Decision, [ECF No. 1-3], at 3. Plaintiffs filed their Complaint on November 

1, 2022, alleging that USCIS’s denial of the petition was arbitrary, capricious, and unlawful. As 

relief, Plaintiffs sought an order compelling Defendants to reopen the administrative proceedings 

and classify Plaintiff Castillo Castillo as an E-2 Treaty Investor. Compl. at 8.

After this case was filed, USCIS reopened the administrative proceedings, vacated its 

Initial Decision, and issued a new RFE to Plaintiffs. See Mot. at 3; Mot. to Stay Court Proceedings 

Pending Further Administrative Processing (“Motion to Stay”), [ECF No. 6]. Defendants then 

appeared in this action and filed their Motion to Stay, which the Court granted after Plaintiffs never 

filed any response in opposition to it. Order Staying Case, [ECF No. 8]. Plaintiff Castillo Castillo 

provided a response to the new RFE on April 24, 2023. Defs.’ Second Status Report, [ECF No. 

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11]. After evaluating Plaintiff Castillo Castillo’s new response, USCIS issued a new decision

(“Final Decision”) and once again denied the I-129 Petition on June 2, 2023. See Mot. at 3; 

Decision, [ECF No. 12-1]. The Final Decision did not rely on the fact that Plaintiff Castillo 

Castillo could not prove the source of New Winds’ investment. See generally Decision, [ECF No. 

12-1]. Instead, USCIS largely took issue with Plaintiffs’ evidence relating to the funds used by 

Plaintiff Castillo Castillo for his investment, concluding that “[t]he evidence is insufficient to 

establish that the investment funds or assets were not obtained, directly or indirectly, through 

criminal activity.” See id. at 1–5. USCIS also found that Plaintiff Castillo Castillo failed to 

establish the enterprise he invested in was a bona fide enterprise. Id. at 6–7. 

 Defendants filed their Motion on July 14, 2023. Defendants request the Court dismiss the 

case because (1) Plaintiffs’ Complaint only seeks review of USCIS’s now-vacated Initial Decision, 

which is no longer a “final agency action” the Court has jurisdiction to review; and (2) this case is 

now moot because the Final Decision does not rely on the bases underlying the Initial Decision

that Plaintiffs filed this action to challenge. Notably, Plaintiffs have not moved to file an amended 

complaint and have instead opposed the Motion. 

LEGAL STANDARD

A party may move to dismiss a case for lack of subject matter jurisdiction pursuant to 

Federal Rule of Civil Procedure 12(b)(1). FED. R. CIV. P. 12(b)(1). A challenge to the court’s

subject matter jurisdiction can either be a “facial” or “factual” attack on jurisdiction. Makro 

Capital of Am., Inc. v. UBS AG, 543 F.3d 1254, 1258 (11th Cir. 2008). A facial attack challenges 

the court’s jurisdiction based solely on the plaintiff’s allegations. Lawrence v. Dunbar, 919 F.2d 

1525, 1529 (11th Cir. 1990). Factual attacks rely on matters outside of the pleadings, and the court 

may consider extrinsic evidence and “weigh the facts” to determine if jurisdiction exists. See 

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Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335–36 (11th Cir. 2013) (quoting 

Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009)). The 

plaintiff has the burden of proving jurisdiction exists over a case. OSI, Inc. v. United States, 285 

F.3d 947, 951 (11th Cir. 2002). 

ANALYSIS

I. The Initial Decision is Not a Final Agency Action 

First, Defendants argue the Initial Decision is no longer a final agency action and Plaintiffs 

cannot seek review of the Initial Decision because they have not amended their Complaint to 

challenge the Final Decision. Plaintiffs do not respond to this argument. This alone is sufficient 

grounds for dismissing this case, because “a ‘party’s failure to respond to any portion or claim in 

a motion indicates such portion, claim or defense is unopposed.’” See, e.g., Rasof v. Lyubovny, 

No. 22-60930, 2022 WL 18464860, at *2 (S.D. Fla. Nov. 1, 2022) (quoting Jones v. Bank of Am., 

N.A., 564 F. App’x 432, 434 (11th Cir. 2014)). Nonetheless, the Court agrees with Defendants.

 A court may review “[a]gency action made reviewable by statute and final agency action 

for which there is no other adequate remedy.” 5 U.S.C. § 704. “[P]reliminary, procedural, or 

intermediate agency action[s] or ruling[s] not directly reviewable [are] subject to review on the 

review of the final agency action.” Id.; see also Nat’l Parks Conservation Ass’n v. Norton, 324 

F.3d 1229, 1236 (11th Cir. 2003) (“[F]ederal jurisdiction is . . . lacking when the administrative 

action in question is not ‘final’ within the meaning of 5 U.S.C. § 704.”). An action is a “final 

agency action” when two requirements are met: “First, the action must mark the consummation of 

the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. 

And second, the action must be one by which rights or obligations have been determined, or from 

which legal consequences will flow.” U.S. Army Corps. of Eng’rs v. Hawkes Co., 578 U.S. 

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590, 597 (2016) (quoting Bennett v. Spear, 520 U.S. 154, 177–78 (1997)). “The ‘core question’ 

about finality ‘is whether the agency has completed its decisionmaking process, and whether the 

result of that process is one that will directly affect the parties.’” Canal A Media Holding, LLC v. 

U.S. Citizenship and Immigr. Servs., 964 F.3d 1250, 1255 (11th Cir. 2020) (quoting Franklin v. 

Massachusetts, 505 U.S. 788, 797 (1992)). In similar contexts, courts have held an agency’s 

decision is no longer a final agency action once the agency reopens the administrative proceedings. 

See, e.g., RELX, Inc. v. Baran, 397 F. Supp. 3d 41, 50–51 (D.D.C. 2019); Ahlijah v. Nielsen, No.

17-1720, 2018 WL 3363875, at *2 (D. Md. July 10, 2018) (citing cases). There is a limited 

exception to this rule applied when the agency has simply reopened the case “in name only.” 

Baran, 397 F. Supp. 3d at 50–51.

There is no question that USCIS’s Initial Decision constituted a final agency action when 

it was rendered and when this case was filed. The Initial Decision, however, now fails both 

requirements for qualifying as a final agency action. It is not the consummation of USCIS’s 

decisionmaking process because it was vacated following USCIS’s reopening of the administrative 

proceedings. And relatedly, no legal consequences flow from the Initial Decision because USCIS 

has issued the now-operative Final Decision that does not rely whatsoever on the Initial Decision. 

Finally, USCIS did not reopen the administrative proceedings in name only, because it issued a 

new RFE and an entirely new decision before Defendants filed the Motion. See Baran, 397 F. 

Supp. 3d at 51 (“Courts have looked at factors such as whether the agency has sought additional 

information, whether it identified issues with the original decision or areas for further evidentiary 

development, and whether the agency requested any additional evidence.”). Therefore, USCIS’s 

Initial Decision is not a final agency action. As Plaintiffs have seemingly no intention to amend 

their Complaint to seek review of USCIS’s Final Decision, this case must be dismissed.

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II. This Case is Moot

Defendants also argue this case must be dismissed as moot because the Initial Decision has 

already been vacated and the Final Decision does not rely on the bases underlying the Initial 

Decision. Mot. at 5–7. Therefore, even if the Court were to issue a decision sustaining Plaintiffs’ 

challenges to the Initial Decision and RFE, that order would have no effect on the outcome of the 

administrative proceedings. Plaintiffs largely concede this point, but they argue this case falls 

within the exception to mootness recognized in cases where an action is capable of repetition yet 

evading review. Resp. at 1–2. The Court agrees this case is moot and therefore falls outside of 

the scope of its jurisdiction under Article III.

Article III of the Constitution only gives federal courts jurisdiction over “Cases” and 

“Controversies.” U.S. CONT. art. III, § 2. “As a result, federal courts may exercise their power 

only for ‘the determination of real, earnest, and vital controversy between individuals.’” Trichell 

v. Midland Credit Mgmt., Inc., 964 F.3d 990, 996 (11th Cir. 2020) (quoting Chi. & Grand Trunk 

Ry. Co. v. Wellman, 143 U.S. 339, 345 (1892)). Mootness is derived from this case-or-controversy 

limitation, “because an action that is moot cannot be characterized as an active case or 

controversy.” Hall v. Sec’y, Ala., 902 F.3d 1294, 1297 (11th Cir. 2018) (cleaned up) (quoting Al 

Najjar v. Ashcroft, 273 F.3d 1330, 1335 (11th Cir. 2001)). A case is moot where “the issues 

presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” 

Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 

(1982) (per curiam)). “Any decision on the merits of a moot case or issue would be an 

impermissible advisory opinion.” Al Najjar, 273 F.3d at 1336 (quoting Fla. Ass’n of Rehab. 

Facilities, Inc. v. Fla. Dep’t of Health and Rehab. Servs., 225 F.3d 1208, 1217 (11th Cir. 2000)). 

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Courts recognize an exception to mootness for disputes that are “capable of repetition, yet 

evading review.” Health Freedom Def. Fund v. President of United States, 71 F.4th 888, 892 

(11th Cir. 2023). This exception is narrow, however, and it only applies where “(1) the challenged 

action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there 

is a reasonable expectation that the same complaining party will be subject to the same action 

again.” Id. at 892–93 (quoting Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1343 (11th Cir. 2014)).

This case has obviously been mooted by USCIS vacating the Initial Decision and issuing 

the Final Decision. Plaintiffs allege Defendants violated the regulations governing E-2 Treaty 

Investor status when USCIS required Plaintiff Castillo Castillo to prove the source of the funds 

invested into the enterprise by New Winds. The Final Decision does not rely on this basis at all. 

And the Court cannot order Defendants to reopen the administrative proceedings on the basis of 

the Initial Decision, because they have already done so. Therefore, even if USCIS’s request was 

in fact erroneous, a judicial decision cannot afford Plaintiffs any remedy they have not already 

received from USCIS itself. Simply put, there is no relief left for this Court to issue.

Further, Plaintiffs’ reliance on the capable of repetition yet evading review exception fails. 

First, there is nothing indicating this type of dispute—an agency proceeding that has lasted over 

two years—is “too short to be fully litigated prior to cessation or expiration.” Arcia, 772 F.3d at

1343. Second, Plaintiffs argue they face a “realistic, and non-speculative, prospect of having future 

petitions as E-2[] investor[s] denied under a misapplication of the law.” Resp. at 2. Even accepting 

the assertion that Plaintiffs will file future petitions, it is rank speculation that USCIS would base 

any future decision on the ground Plaintiffs initially challenged in this lawsuit. See Health 

Freedom Def. Fund, 71 F.4th at 893 (noting this exception requires a “reasonable expectation” or 

“demonstrated probability” that the same controversy will occur again (quoting Fed. Election 

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Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 463 (2007))). Plaintiffs are simply seeking an 

advisory opinion they may use in future proceedings against USCIS, but this Court cannot award

that relief. This case must be dismissed. 

CONCLUSION

Based on the foregoing, it is hereby ORDERED AND ADJUDGED as follows:

1. Defendants’ Motion, [ECF No. 12], is GRANTED. 

2. This case is DISMISSED for lack of subject matter jurisdiction.

3. Any other pending motions are DENIED AS MOOT. 

4. The Clerk is instructed to mark this case CLOSED. 

DONE AND ORDERED in Miami, Florida, this 6th day of August, 2023. 

 

 _________________________________ 

 RODOLFO A. RUIZ II

UNITED STATES DISTRICT JUDGE

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