Cherif v. Department of Homeland Security (District Counsel) ( 2010 )

09-3719-cv
Cherif v. Department of Homeland Security (District Counsel)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 24 th day of May, two thousand and ten.
5
6 PRESENT: AMALYA L. KEARSE,
7 RICHARD C. WESLEY,
8 Circuit Judges,
9 PAUL A. CROTTY,
10 District Judge. *
11
12
13 DR. SOULEYMANE CHERIF,
14
15 Plaintiff-Appellant,
16
17 -v.- 09-3719-cv
18
19 DEPARTMENT OF HOMELAND SECURITY
20 (District Counsel), and BUREAU OF
21 CITIZENSHIP AND IMMIGRATION SERVICES,
22 VERMONT SERVICE CENTER (Service
23 Counsel),
24
25 Defendants-Appellees. **
26
27
28
*
The Honorable Paul A. Crotty, United States District Court for the
Southern District of New York, sitting by designation.
**
The Clerk of the Court is respectfully directed to amend the official
caption in this action to conform to the caption in this summary order.
1 FOR APPELLANT: DR. SOULEYMANE CHERIF, pro se,
2 New York, NY.
3
4 FOR APPELLEES: SUE CHEN, Special Assistant
5 United States Attorney (Benjamin
6 H. Torrance, Assistant United
7 States Attorney, on the brief),
8 for Preet Bharara, United States
9 Attorney for the Southern
10 District of New York, New York,
11 NY.
12
13 Appeal from the United States District Court for the
14 Southern District of New York (Jones, J.).
15
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17 AND DECREED that the judgment of the district court is
18 AFFIRMED.
19 Plaintiff, a native and citizen of Cote d’Ivoire who
20 proceeded pro se throughout these proceedings, appeals the
21 June 5, 2009 decision of the district court dismissing his
22 complaint. We presume the parties’ familiarity with the
23 facts, the procedural history, and the issues in the appeal.
24 Plaintiff commenced this action seeking an order
25 directing the government to reopen the proceedings that led
26 to the denial of his visa application. In a May 3, 2006
27 Report and Recommendation, a magistrate judge recommended
28 that the district court transfer the matter to this Court
29 pursuant to 28 U.S.C. § 1631. By order dated June 5, 2009,
30 however, the district court declined that course and instead
2
1 dismissed the complaint. Cherif v. Dep’t of Homeland Sec.,
2 No. 04 Civ. 5727, 2009 WL 1619903 (S.D.N.Y. June 5, 2009).
3 In declining to transfer, the court held that the “REAL ID
4 Act . . . requires such transfers [to the Court of Appeals]
5 only where the action seeks review of a final order of
6 removal,” but that “Plaintiff sought only to compel the
7 Associate Commissioner to reopen the decision revoking the
8 approval of his visa petition.” Id. at *2. The district
9 court reasoned further that, even if the complaint was
10 construed as a challenge to a subsequent order that he be
11 removed from the country, this Court would lack jurisdiction
12 over any challenge to that order because plaintiff failed to
13 exhaust his administrative remedies before the Board of
14 Immigration Appeals. See id. at *3 n.3.
15 Finally, in dismissing the action, the district court
16 found the complaint insufficient, noting that although it
17 sought an order compelling the agency to reopen the visa
18 petition proceedings, both the complaint and the agency’s
19 records showed that the motion to reopen had in fact been
20 granted. The court ruled that the fact that the agency had,
21 after reopening the proceedings, decided to adhere to its
22 original decision afforded plaintiff no grounds for relief.
3
1 We review de novo the district court’s legal
2 conclusions regarding the legal sufficiency of plaintiff’s
3 complaint, see Ajlani v. Chertoff, 545 F.3d 229, 233 (2d
4 Cir. 2009), and we review for abuse of discretion the
5 district court’s decision declining to transfer the action
6 to this Court pursuant to 28 U.S.C. § 1631, see Paul v. INS,
7 348 F.3d 43, 46 (2d Cir. 2003). In doing so, we are mindful
8 of plaintiff’s pro se status and therefore liberally
9 construe his pleadings and submissions. Harris v. Mills,
10 572 F.3d 66, 72 (2d Cir. 2009). Nevertheless, having
11 conducted a thorough and independent review of the record,
12 as well as considered all of plaintiff’s arguments on this
13 appeal, we affirm for reasons substantially similar to those
14 stated by the district court.
15 Accordingly, the judgment of the district court is
16 AFFIRMED.
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
4