Panchishak v. United States Department of Homeland Security Nebraska Service Center U.S.C.I.S. , 446 F. App'x 361 ( 2011 )

10-5068-cv
Panchishak v. United States Department of Homeland Security
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 16th day of November, two thousand eleven.
PRESENT:
ROGER J. MINER,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
_____________________________________
Mycola Panchishak,
Plaintiff-Appellant,
v. 10-5068-cv
United States Department of Homeland Security
Nebraska Service Center U.S.C.I.S.,
Defendant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: Mycola Panchishak, pro se, New City, NY.
FOR DEFENDANT-APPELLEE: David Bober and Benjamin H. Torrence, Assistant
United States Attorneys, for Preet Bharara, United
States Attorney for the Southern District of New
York, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Pauley, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Mycola Panchishak, proceeding pro se, appeals from the district
court’s judgment dismissing his complaint as moot to the extent that he sought mandamus relief
to compel adjudication of his application for adjustment of his immigration status and for failure
to state a claim and lack of subject matter to the extent that he sought nunc pro tunc relief and
damages. We assume the parties’ familiarity with the underlying facts, the procedural history of
the case, and the issues on appeal.
We review de novo the district court’s dismissal of a complaint under Federal Rule of
Civil Procedure 12(b)(6), “construing the complaint liberally, accepting all factual allegations in
the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers
v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). A district court’s dismissal of a
complaint for lack of subject matter jurisdiction is reviewed de novo. See Celestine v. Mount
Vernon Neighborhood Health Center, 403 F.3d 76, 79-80 (2d Cir. 2005).
Here, an independent review of the record and case law reveals that the district court
properly dismissed Panchishak’s complaint. Except as noted below, we affirm for substantially
the same reasons stated in the district court’s memorandum and order. See Panchishak v. U.S.
Dep’t of Homeland Sec., No. 08cv6448 (WHP), 2010 WL 3958772 (S.D.N.Y. Sept. 22, 2010).
On appeal, Panchishak challenges the dismissal of his claim for nunc pro tunc relief. In
the immigration context, the purpose of the nunc pro tunc doctrine is “to return aliens to the
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position in which they would have been, but for a significant error in their immigration
proceedings.” Edwards v. INS, 393 F.3d 299, 309 (2d Cir. 2004). Nunc pro tunc relief
ordinarily should be available in the immigration context where agency error would otherwise
result in an alien being deprived of the opportunity to seek a particular form of relief. Id. at 310;
see also Iouri v. Ashcroft, 487 F.3d 76, 87 (2d Cir. 2007).
Here, Panchishak’s allegations did not suggest a plausible basis for nunc pro tunc relief.
Panchishak’s complaint sought nunc pro tunc relief to rectify the “error” of the United States
Citizenship and Immigration Services (“CIS”) of a then-ongoing five-year delay in processing
his application to adjust to lawful permanent resident (“LPR”) status, which he alleged had
deprived him of the opportunity to apply for citizenship at the earliest possible time but for the
delay. Because Panchishak subsequently was granted LPR status in 2009, there was no longer
any impediment preventing him from applying for citizenship. Panchishak maintains that he was
also deprived of the opportunity to petition to bring his now-adult daughter to the United States
at an earlier time. However, as Panchishak himself acknowledges, he can still petition to bring
his daughter to the United States, albeit he must now wait longer than if he had been granted
LPR status before she turned 21. Indeed, Panchishak has filed such a petition, and the petition
has been approved. Thus, in light of his grant of LPR status, it cannot be said that he has been
deprived of the opportunity to seek immigration relief to the extent necessary sufficiently to state
a plausible claim for nunc pro tunc relief. See Edwards, 393 F.3d at 310-11.
We have considered all of Panchishak’s arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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