Saleh v. Pastore

21-1073
Saleh v. Pastore
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 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 27th day of October, two thousand twenty-one.
PRESENT: Dennis Jacobs,
Steven J. Menashi,
Circuit Judges
Lewis J. Liman,
District Judge. *
____________________________________________
TAREK YOUSSEF HASSAN SALEH,
Plaintiff-Appellant,
v. No. 21-1073
*Judge Lewis J. Liman of the United States District Court for the Southern District of
New York, sitting by designation.
GINA PASTORE, as Brooklyn Field Office
Director U.S. Citizenship and Immigration
Services, SUSAN QUINTANA, as New York City
Field Office Director U.S. Citizenship and
Immigration Services, LEE BOWES, as Acting
Field Office Director, Northeast Region, USCIS,
TRACY RENAUD, Acting Director, USCIS,
Alejandro Mayorkas, Secretary U.S. Department of
Homeland Security, CHRISTOPHER A. WRAY,
Director Federal Bureau of Investigation,
MERRICK B. GARLAND, Attorney General U.S.
Department of Justice,
Defendants-Appellees.
____________________________________________
For Plaintiff-Appellant: Tarek Youssef Hassan Saleh, pro se, Staten
Island, NY
For Defendants-Appellees: Joshua Kahane, Christopher Connolly,
Assistant United States Attorneys, for
Damian Williams, 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 (Failla, J.).
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Upon due consideration, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court is AFFIRMED.
Appellant Tarek Saleh, proceeding pro se, sued officers of United States
Citizenship and Immigration Services (“USCIS”) and other government officials,
alleging violations of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101
et seq.; the Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq.; and Saleh’s
Fifth Amendment right to due process, U.S. Const. amend. V, as well as unlawful
interference with Congress’s power to establish a uniform rule of naturalization,
U.S. Const. art. I, § 8, cl. 4. Saleh sought an order (1) compelling USCIS to
adjudicate his Application for Naturalization (Form N-400) and (2) enjoining
USCIS from employing the Controlled Application Review and Resolution
Program (“CARRP”) in conducting that adjudication. While the case was pending,
USCIS denied Saleh’s Form N-400, and Saleh administratively appealed the
decision by filing a Request for a Hearing on a Decision in Naturalization
Proceedings (Form N-336).
The district court subsequently dismissed the complaint in part as moot and
in part for Saleh’s failure to exhaust his administrative remedies. It also denied
Saleh’s motions for recusal, for a hearing on his then-pending naturalization
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application under 8 U.S.C. § 1447(b), and for an order directing USCIS to hold a
hearing on Saleh’s administrative appeal and to issue an opinion within 180 days
of the hearing. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
I
When reviewing a dismissal under Federal Rule of Civil Procedure 12(b)(1),
“we review factual findings for clear error and legal conclusions de novo.” Makarova
v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
The district court properly dismissed Saleh’s claims related to his Form
N-400 as moot. “A case is moot when the issues presented are no longer live or the
parties lack a legally cognizable interest in the outcome.” Tann v. Bennett, 807 F.3d
51, 52 (2d Cir. 2015) (internal quotation marks omitted). “In the immigration and
naturalization context, courts have dismissed cases as moot where the executive
agency to which the plaintiff has applied grants the relief sought in the complaint
prior to the court’s adjudication.” Li v. Napolitano, No. 08-CV-7353, 2009 WL
2358621, at *3 (S.D.N.Y. July 30, 2009) (collecting cases).
Saleh sought an order directing USCIS to schedule a naturalization
interview and to adjudicate his Form N-400 application. On February 18, 2020,
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USCIS interviewed Saleh and then, on August 31, 2020, issued its denial of Saleh’s
application. Accordingly, any claim seeking to compel USCIS to adjudicate Saleh’s
application became moot because “the relief sought can no longer be given or is
no longer needed.” Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983). 1
Saleh argues that his case cannot be dismissed on mootness grounds
because USCIS lost the power to adjudicate his claims when he filed his § 1447(b)
petition. Although a “properly filed Section 1447(b) petition vests jurisdiction in
the district court and divests USCIS of its jurisdiction to decide the application,”
Saleh did not properly file a § 1447(b) petition. Bustamante v. Napolitano, 582 F.3d
403, 406 (2d Cir. 2009). After USCIS fails to make a determination on a Form N-400
within 120 days of an applicant’s examination, the applicant “may apply to the
United States district court for the district in which the applicant resides for a hearing
on the matter.” 8 U.S.C. § 1447(b) (emphasis added). It is undisputed that Saleh
resides in Richmond County, which is within the Eastern District of New York. See
28 U.S.C. § 112(c). Because he sought review in the Southern District of New York,
1 Moreover, any claim that the district court should have granted Saleh’s request for a
hearing under 8 U.S.C. § 1447(b)—or transferred the case to the Eastern District of New
York for such a hearing—is moot because Saleh’s naturalization application has been
denied.
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Saleh did not “properly file[]” his section 1447(b) petition, and therefore his
petition did not “divest[] USCIS of its jurisdiction to decide [his] application.”
Bustamante, 582 F.3d at 406.
II
The district court also properly found that Saleh’s request for mandamus
relief directing USCIS to schedule a hearing on his Form N-336 administrative
appeal is moot. USCIS has 180 days after the date an administrative appeal is filed
to schedule a hearing. 8 C.F.R. § 336.2(b). Saleh filed his Form N-336 appeal on
September 1, 2020, and the hearing—which Saleh opted not to attend—was
scheduled for February 24, 2021, within the 180-day deadline.
In addition, the district court did not err by denying Saleh’s motion for an
order directing the USCIS to issue a decision within a specific timeframe. Saleh
cannot obtain mandamus relief directing USCIS to issue a decision on his Form N-
336 appeal according to a prescribed timeline. “[M]andamus is an extraordinary
remedy, intended to aid only those parties to whom an official or agency owes ‘a
clear nondiscretionary duty.’” Escaler v. USCIS, 582 F.3d 288, 292 (2d Cir. 2009)
(quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)). Saleh does not identify any
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statute or regulation setting out a timeline for a USCIS decision on a Form N-336
appeal.
III
The district court properly dismissed the remainder of Saleh’s claims—
brought under the INA, the APA, and the Constitution—concerning the purported
adjudication of his naturalization application through CARRP. To obtain judicial
review of a naturalization application an applicant must exhaust his
administrative remedies before filing suit. See Escaler, 582 F.3d at 292 (“[J]udicial
review of the denial of an application to be naturalized[] requires the exhaustion
of administrative remedies prior to seeking that relief.”); see also 8 U.S.C. § 1421(c)
(providing a cause of action for a person whose application for naturalization has
been denied “after a hearing before an immigration officer under section 1447(a)”).
The APA and constitutional claims are likewise subject to the INA’s exhaustion
requirement. See Moya v. DHS, 975 F.3d 120, 126-27 (2d Cir. 2020). This exhaustion
requirement is “mandatory, and courts are not free to dispense with it.” Escaler,
582 F.3d at 292. At the time Saleh filed his complaint, USCIS had not yet denied
his Form N-400 application. The district court therefore properly dismissed these
claims because Saleh failed to exhaust his administrative remedies prior to seeking
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judicial review. See Moya, 975 F.3d at 127 (holding that a plaintiff “may not sue
until they have satisfied” the exhaustion requirement). Even now, the record does
not indicate that USCIS has issued a final decision on Saleh’s Form N-336 appeal.
IV
Finally, the district court did not abuse its discretion by denying Saleh’s
motion for recusal. We review a denial of a motion to recuse for abuse of
discretion. See United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992).
“A federal judge must recuse herself in any proceeding where her
‘impartiality might reasonably be questioned’” or “where the judge ‘has a personal
bias or prejudice concerning a party.’” United States v. Morrison, 153 F.3d 34, 48 (2d
Cir. 1998) (quoting 28 U.S.C. § 455(a), (b)(1)). Additionally, a judge shall not
proceed in a matter in which he or she “has a personal bias or prejudice either
against [the plaintiff] or in favor of any adverse party.” 28 U.S.C § 144. The need
for recusal arises when “an objective, disinterested observer fully informed of the
underlying facts” would “entertain significant doubt that justice would be done
absent recusal.” United States v. Amico, 486 F.3d 764, 775 (2d Cir. 2007).
Saleh argues recusal was required here for three reasons. First, he suggests
that the district judge, who was a former federal prosecutor, was biased against
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him because she previously prosecuted Muslim terrorists. But Saleh offers no
evidence that the district judge was biased against Muslims based on her prior
prosecutorial experience. The fact that the district judge was a former prosecutor
is not sufficient to create bias. See, e.g., Kendrick v. Carlson, 995 F.2d 1440, 1444 (8th
Cir. 1993) (“[A]n AUSA without any involvement in a case brought by other
attorneys in his office is not required to disqualify himself from presiding over
such a case under 28 U.S.C. § 455(b)(3).”); United States v. Fanta, No. 04-CR-1253,
2005 WL 3434709, at *2 (S.D.N.Y. Dec. 13, 2005).
Second, Saleh infers that the district judge was biased against him because
she denied his motion for a § 1447(b) hearing and delayed deciding whether to
transfer his case to the Eastern District of New York. But adverse rulings are not
evidence of bias. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial
rulings alone almost never constitute a valid basis for a bias or partiality recusal
motion.”).
Third, Saleh contends that the district judge tried to force him to attend an
administrative hearing by informing him that failure to attend could result in
further delays in his case. But that statement was not coercive; the district judge
merely pointed out that failure to attend the hearing could create more delays.
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Because the standards for recusal were not met, the district court did not
abuse its discretion by denying Saleh’s motion for recusal.
* * *
We have considered Saleh’s remaining arguments, which we conclude are
without merit. For the foregoing reasons, we AFFIRM the judgment of the district
court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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