DocketNumber: No. 12 CV 2699 ILG
Citation Numbers: 916 F. Supp. 2d 329
Judges: Glasser
Filed Date: 1/8/2013
Status: Precedential
Modified Date: 11/26/2022
MEMORANDUM AND ORDER
Plaintiff Jaswinder Sandhu (“plaintiff’) brings this action to obtain judicial review of the denial of his application for adjustment of status by the United States Citizenship and Immigration Services (“US-CIS”), and to obtain an order that his application be approved. Currently before the Court is the government’s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) or, in the alternative, for summary judgment. For the reasons set forth below, the government’s motion is hereby GRANTED.
I. BACKGROUND
Plaintiff came to the United States from India on September 28, 1996 on a visitor’s visa that was valid through March 27, 1997. Administrative Record (“R.”) at 268 (Dkt. Nos. 9-3 to -5).
On March 8, 2002, the Immigration and Naturalization Service (“INS”)
On January 5, 2007, S.J.K. Restaurant Corporation filed a Form 1-140 Immigration Petition for Alien Worker on behalf of plaintiff,
The documentation submitted by the couple is insufficient to outweigh the fact that they failed to appear for an interview, and alone does not persuade the Service of the existence of a bona fide marriage. Specifically, the documentation is insufficient because there was no original lease agreement submitted and no way of verifying who executed the agreement or when it was executed. The affidavits submitted do not constitute evidence that the two of you intended to share a life together when you participated in the marriage ceremony.
R. at 100-03.
Plaintiff moved to reopen and reconsider his Form 1-485 application on April 8, 2011. R. 94-99. On November 23, 2011, USCIS reconsidered plaintiffs application and again denied it. In its second denial, USCIS listed the same reasons as in its first denial, and added that Jones’ affida
Plaintiff initiated this action on May 30, 2012, seeking judicial review of the denial of his N185 application, and an order that his application be approved. Complaint (“Compl”) ¶3 (Dkt. No. 1). On July 16, 2012, the Department of Homeland Security commenced a removal proceeding against plaintiff. R. 56-57. On September 25, 2012, the government moved to dismiss plaintiffs complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), or, in the alternative, for summary judgment pursuant to Rule 56(a). Dkt. No. 9. The government argues that the Court lacks subject matter jurisdiction or, in the alternative, that the Court should affirm USCIS’s decision under the Administrative Procedure Act. Defendants’ Memorandum of Law in Support of Motion dated September 25, 2012 (“Gov’t’s Mem.”), at 1 (Dkt. No. 9-2). On November 6, 2012, plaintiff filed his opposition to the government’s motion, Plaintiffs Opposition to Defendant’s FRCP 12(b)(1) Motion to Dismiss (“Pl.’s Opp’n”) (Dkt. No. 10), and on November 15, 2012, the government filed its reply. Defendants’ Reply Memorandum of Law in Further Support of Motion (“Gov’t’s Reply”) (Dkt. No. 11).
II. DISCUSSION
A. Legal Standards
On a “defendant’s Rule 12(b)(1) motion to dismiss, ... [t]he plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Tranp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005). “[A] district court may properly dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) if it lacks the statutory or constitutional power to adjudicate it.” Id. (internal quotation omitted).
In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, which stripped federal courts of jurisdiction to review discretionary immigration rulings; in 2005, Congress amended the law to permit limited judicial review. See Rosario v. Holder, 627 F.3d 58, 61 (2d Cir.2010). As the law currently stands, 8 U.S.C. § 1252(a)(2), entitled “[mjatters not subject to judicial review,” states that:
Notwithstanding any other provision of law (statutory or nonstatutory), ... and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section ... 1255 [adjustment of status] of this title.
8 U.S.C. §§ 1252(a)(2)(B)®. A subsection entitled “[j]udicial review of certain legal claims” provides that no provision “which limits or eliminates judicial review[ ] shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals.” 8 U.S.C. § 1252(a)(2)(D).
In general, “8 U.S.C. § 1252(a)(2)(B)® eliminates district court jurisdiction to review the denial of an I-485 application” under § 1255. Ruiz v.
B. Subject Matter Jurisdiction
The government argues that “this action is barred by 8 U.S.C. § 1252(a)(2)(B)®” because plaintiff claims “that an immigration adjudicator improperly weighed evidence in denying an application for adjustment of status.” Gov’t’s Mem. at 9. Plaintiff responds that this action is not jurisdietionally barred because it presents a mixed question of law and fact. He claims that he “does not allege solely that the immigration adjudicator improperly weighed the totality of the evidence in this matter, but also and namely that the adjudicator improperly interpreted the legal meaning and implications of a marriage annulment.” Pl.’s Opp’n at 2.
Plaintiffs claim must rest on the judicial exception to § 1252(a)(2)(B)®, because the statutory exception of § 1252(a)(2)(D) is inapplicable to district courts. See Kim v. Gonzales, No. Civ. CCB-05-485, 2006 WL 581259, at *4 (D.Md. Mar. 7, 2006) (“It is clear, however, that by its express terms, § 1252(a)(2)(D) only provides such jurisdiction to courts of appeals and not to district courts.”); see also Ajlani v. Chertoff, 545 F.3d 229, 235 (2d Cir.2008) (holding that district courts lack jurisdiction to review constitutional challenges to removal proceedings because § 1252(a)(2)(D) vests jurisdiction “exclusively in the courts of appeals”).
Plaintiff supports his argument by analogizing to Sepulveda v. Gonzales. In Sepulveda, immigration authorities found that the alien “was unable to establish good moral character as matter of law” due to criminal convictions, and, therefore, was statutorily ineligible for adjustment of status. 407 F.3d at 63-64. The court held that a determination of statutory ineligibility was a nondiscretionary legal determination, not a discretionary factual determination, so judicial review was not barred by § 1252(a)(2)(B)®. Id. Plaintiff suggests that USCIS’s determination that he did not enter into a bona fide marriage, which made him ineligible for adjustment of status due to failure to maintain continuous lawful status, is reviewable under § 1252(a)(2)(B)® because it is similar to the finding of lack of good moral character in Sepulveda. Compl. ¶22. He further argues that USCIS’s reliance on the marriage annulment is itself a reviewable legal determination, because “an annulment based upon fraud can mean many things.”
Plaintiffs argument is misplaced. The Second Circuit has explicitly-held that USCIS’s “determination that [an alien] entered into a marriage for immigration purposes” is “factual.” Arenas-Garcia v. Mukasey, 254 Fed.Appx. 105, 106 (2d Cir.2007). Moreover, this case is unlike Sepulveda because USCIS did not simply find plaintiff statutorily ineligible for adjustment based on the annulment. Rather, USCIS weighed the totality of the evidence, including plaintiffs failure to appear for an interview, the authenticity of the lease, and the credibility of the affiants; USCIS only mentioned the marriage annulment to cast doubt on the credibility of Jones’ affidavit. Therefore, plaintiff attempts to use “the rhetoric of ... law to disguise what is essentially a quarrel about fact-finding or the exercise of discretion.” Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir.2008). Because USCIS made a discretionary decision, plaintiffs claims must be dismissed for lack of subject matter jurisdiction under § 1252(a)(2)(B)®. See Wallace v. Gonzales, 463 F.3d 135, 139-40 (2d Cir. 2006) (citing cases).
III. CONCLUSION
For all of the foregoing reasons, the government’s motion to dismiss the complaint is hereby GRANTED.
SO ORDERED.
. “In resolving the question of jurisdiction, the court can refer to evidence outside the pleadings.” Bentley v. Wellpoint Cos., Inc., No. 11 Civ. 8963(CM), 2012 WL 546991, at *2 (S.D.N.Y. Feb. 17, 2012) (quoting Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir.2002)). "The consideration of materials extrinsic to the pleadings does not convert the Rule 12(b)(1) motion into one for summary judg
."Pursuant to the Homeland Security Act of 2002, the INS was abolished and its functions reassigned to subdivisions of the Department of Homeland Security-the Bureau of Immigration and Customs Enforcement ('ICE') and the Bureau of United States Citizenship and Immigration Services (‘USCIS’).” Miller v. Mukasey, 539 F.3d 159, 161 n. 1 (2d Cir.2008) (citations and quotations omitted).
. "Labor certification is a prerequisite to an employment-based visa, for which an employer must file an 1-140 petition.” Rajah v. Mukasey, 544 F.3d 449, 452 n. 5 (2d Cir. 2008).
. The parties submit no evidence concerning plaintiff’s activities from 2002 through 2007.
. The Judgment of Annulment states "that the marriage between the Plaintiff, Rowena Jones, and the Defendant, Sandhu Jaswinder, is hereby annulled by reason of: the consent of the Plaintiff to the marriage was obtain [sic ] by fraud.” R. 82-83. Under New York law, "[a]n action to annul a marriage on the ground that the consent of one of the parties thereto was obtained by fraud may be maintained by the party whose consent was so obtained.” N.Y. Dom. Rel. § 140(e) (McKinney 2012).
. To support this argument, plaintiff relies heavily on United States v. Orellana-Blanco, 294 F.3d 1143, 1151 (9th Cir.2002). Pl.'s Opp'n at 3-4. Orellana-Bianco is a post-conviction ruling discussing criminal marriage fraud that is irrelevant to the issue of whether the Court has jurisdiction under § 1252(a)(2)(B)(i).
. Even if the Court had subject matter jurisdiction, the Court would find that plaintiff’s claims lack merit. Plaintiff, while arguing at some length what an annulment does not mean, fails to discuss what it does mean. "An annulment establishes that the marital status never existed. So annulment and dissolution of marriage (or divorce) are fundamentally different: an annulment renders a marriage void from the beginning, while dissolution of marriage terminates the marriage as of the date of the judgment of dissolution.” Black’s Law Dictionary 99-100 (8th ed.2004). Under New York law, "[a] marriage procured by fraud is voidable, ... so[ ] annulment when decreed[] puts an end to it from the beginning. It is not dissolved as upon divorce. It is effaced as if it had never been.” Campbell v. Thomas, 73 A.D.3d 103, 897 N.Y.S.2d 460, 466 (2d Dep’t 2010) (quoting Sleicher v. Sleicher, 251 N.Y. 366, 167 N.E. 501, 502 (1929)). Since plaintiff's marriage was annulled, it was void at the time he filed his first 1-485 petition based on his marriage. Therefore, plaintiff was not eligible for adjustment of status to a lawful permanent resident. See McCreath v. Holder, 573 F.3d 38, 41-42 (1st Cir.2009) (upholding finding that "the annulment of the first marriage rendered that marriage void ab initio, and so it was insufficient to support a petition for adjustment of status”).