Burni v. Frazier

• Decision Date: 05 March 2008
• Docket Number: Civil No. 06-5046 (PAM/JSM).
• Citation: 545 F.Supp.2d 894
• Parties: Hani BURNI, Plaintiff, v. Denise FRAZIER, District Director, United States Citizenship and Immigration Services ("USCIS"); Emilio T. Gonzalez, Director, USCIS; and Robert Mueller, Director, Federal Bureau of Investigation, Defendants.
• Court: U.S. District Court — District of Minnesota

545 F.Supp.2d 894

Hani BURNI, Plaintiff, v. Denise FRAZIER, District Director, United States Citizenship and Immigration Services ("USCIS"); Emilio T. Gonzalez, Director, USCIS; and Robert Mueller, Director, Federal Bureau of Investigation, Defendants.

Civil No. 06-5046 (PAM/JSM).

United States District Court, D. Minnesota.

March 5, 2008.

COPYRIGHT MATERIAL OMITTED

Marc Prokosch, Karam & Associates, Bloomington, MN, for Plaintiff.

Lonnie F. Bryan, United States Attorney's Office, Minneapolis, MN, for Defendants.

ORDER

PAUL A. MAGNUSON, District Judge.

This matter is before the Court on the Report and Recommendation ("R & R") of Magistrate Judge Janie S. Mayeron dated February 14, 2008. In the R & R, Magistrate Judge Mayeron recommended that this Court deny Defendants' Motion to Dismiss.

Defendants have filed a one-page objection to the R & R, contending that the Magistrate Judge erred by failing to distinguish between Defendant Mueller and the USCIS Defendants. Defendants apparently do not otherwise take issue with the R & R's conclusion that this Court has subject matter jurisdiction over Plaintiffs challenge to the inordinate delay in ruling on his adjustment-of-status application.

Defendants may be correct that Defendant Mueller cannot grant (or deny) Plaintiff the relief he seeks. However, a review of the papers filed in this matter reveals that Defendants failed to raise this argument before the Magistrate Judge. Thus, it is disingenuous to claim that the Magistrate Judge erred on this point. By neglecting to make this argument, Defendants have waived it, at least for the purposes of the Motion to Dismiss.

Accordingly, IT IS HEREBY ORDERED that:

1. The Report and Recommendation (Docket No. 17) is ADOPTED; and

2. Defendants' Motion to Dismiss (Docket No. 5) is DENIED.

REPORT AND RECOMMENDATION

JANIE S. MAYERON, United States Magistrate Judge.

The above matter came before the undersigned upon defendants' Motion to Dismiss [Docket No. 5]. Lonnie F. Bryan, Esq. appeared on behalf of defendants. Marc Prokosch, Esq., appeared on behalf of plaintiff. The matter was referred to the undersigned by the District Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

I. FACTUAL BACKGROUND

Plaintiff Hani Burni brings this action against Denise Frazier, District Director United States Citizenship and Immigration Services ("USCIS"); Emilio T. Gonzalez, Director, United States Citizenship and Immigration Services; and Robert S. Mueller, Director, Federal Bureau of Investigation, seeking a writ to compel defendants to complete the required background checks and security clearances and to adjudicate his application for adjustment of immigration status.

Plaintiff is a native of Saudi Arabia and a citizen of Syria who resides in Minnetonka, Minnesota. Complaint, ¶¶ 1, 8 [Docket No. 1]. After marrying a U.S. citizen in 2004, he filed an I-485 application for adjustment of status to lawful permanent residency on or about December 10, 2004. Id., ¶ 8. Plaintiffs wife filed an I-130 visa petition simultaneously with plaintiffs 485 petition. Id., ¶ 9. The visa petition was approved on June 30, 2005, and plaintiff was therefore immediately eligible to adjust his immigration status to that of a lawful permanent resident. Id. Plaintiff was given notice that he could not be recommended for final approval because his security checks were not complete. Id., ¶ 10. Plaintiff has made numerous efforts to get defendants to complete their security checks and adjudicate his application, including making written inquiries to the Department of Homeland Security, making Infopass appointments at the local district office to inquire about the status of his case, and writing to various government officials. Id., ¶ 12. Because his application has not been adjudicated, plaintiff has been unable to move forward with his life, he has lost valuable job opportunities, he has been deprived of peace of mind, and deprived of important benefits, rights and protections to which he would be entitled as a lawful permanent resident of the United States. Id., ¶ 14.

According to defendants, the FBI commenced plaintiffs name check on or about December 23, 2004.¹ Declaration of Rebecca Arsenault Herize, ¶ 5(d) [Docket No. 7].

The Complaint seeks an order compelling defendants and those acting under them to complete the required background checks and adjudicate plaintiff's application for adjustment of status. Complaint, ¶ 21. Plaintiff alleges that this Court has jurisdiction of the suit pursuant to 28 U.S.C. § 1361 (Mandamus Act), 28 U.S.C. § 1331 (federal question statute) and 5 U.S.C. §§ 551 et seq. and 701 et seq. (Administrative Procedure Act). Complaint, ¶ 2. Plaintiff asserts that he has exhausted his administrative remedies. Complaint, ¶ 3.

Defendants now bring the current motion to dismiss for lack of subject matter jurisdiction. [Docket No. 5].

II. STANDARD OF REVIEW

A motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R.Civ.P. 12(b)(1) may challenge the plaintiffs complaint either on its face or on the factual truthfulness of its averments. See Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.1993); see, also Osborn v. United States, 918 F.2d 724, 729, n. 6 (8th Cir. 1990). In a facial challenge to jurisdiction, the court restricts its review to the pleadings and affords the non-moving party the same protections that it would receive under a Rule 12(b)(6) motion to dismiss. See Osborn, 918 F.2d at 729, n. 6. The court presumes that all of the factual allegations in the complaint concerning jurisdiction are true and will not dismiss the claims unless the plaintiff fails to allege an essential element for subject matter jurisdiction. See Titus, 4 F.3d at 593 (citing Eaton, v. Dorchester Dev., Inc., 692 F.2d 727, 731-32 (11th Cir.1982)): Osborn, 918 F.2d at 729, n.6.

In a factual challenge to jurisdiction, the court may consider matters outside the pleadings and the non-moving party does not benefit from the safeguards of 12(b)(6). See Titus, 4 F.3d 590 at 593; Osborn, 918 F.2d at 729, n. 6. "In short, no presumptive truthfulness attaches to the plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist." Osborn, 918 F.2d at 730 (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3rd Cir.1977)).

Here as the parties are relying on facts extrinsic to the Complaint, the Court will treat defendants' motion as a factual challenge to jurisdiction. See Sawad v. Frazier, 2007 WL 2973833 at *1 (D.Minn. Oct.9, 2007) (J. Doty) ("When a party moves to dismiss an action for lack of subject matter jurisdiction under Rule 12(b)(1), the court may consider matters extrinsic to the allegations in the complaint without converting the proceedings to a Rule 56 summary judgment action because the court is `free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" (citing Osborn, 918 F.2d at 729-30)).

III. ANALYSIS

Defendants move to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that none of the grounds for jurisdiction cited by plaintiff are valid, and that the Immigration and Nationality Act ("INA") bars plaintiffs claim. Defs. Mem., p. 3 [Docket No. 10]. Specifically, defendants' motion to dismiss is based on their contention that 8 U.S.C. § 1252(a)(2)(B)(ii) of the Immigration and Nationality Act ("INA") bars plaintiffs claim, and the other statutes relied upon by plaintiff, the Mandamus Act and the APA, do not confer subject matter jurisdiction on this Court. Defs. Mem., p. 1 [Docket No. 6]. Thus, it is defendants' position that while plaintiff has been waiting more than 3 years for USCIS to adjudicate his application for adjustment of status, his only remedy is to wait and this Court has no authority to intervene. For all of the reasons set forth below, this Court rejects defendants' contentions and concludes that it has jurisdiction over plaintiff's suit.

A. 8 U.S.C. § 1252(a)(2)(B)(ii)

It is defendants' position that 8 U.S.C. § 1252(a)(2)(B)(ii) bars judicial review of the denial of an adjustment of status application. Therefore, they maintain that a court cannot compel USCIS to adjudicate an adjustment of status application within a particular period of time. Defs. Mem., p. 9. In short, defendants claim that § 1252(a)(2)(B)(ii) strips this Court of jurisdiction over plaintiffs suit and his case should be dismissed. The Court disagrees.

In pertinent part, 8 U.S.C. § 1252(a)(2)(B)(ii) states as follows:

Notwithstanding any other provision of law (statutory or nonstatutory), including' section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review —

(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.

(Emphasis added).

Section 1255 of Title 8 is the provision within the INA that bears on plaintiff's application for adjustment of status. This statute states:

The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA² self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for...