Labaneya v. U.S. Citizenship & Immigration Servs.

• Decision Date: 29 August 2013
• Docket Number: No. 12–cv–15506.,12–cv–15506.
• Citation: 965 F.Supp.2d 823
• Parties: Maisoun LABANEYA, et al., Plaintiffs, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Detroit District Director, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

965 F.Supp.2d 823

Maisoun LABANEYA, et al., Plaintiffs,

v.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Detroit District Director, et al., Defendants.

No. 12–cv–15506.

United States District Court,

E.D. Michigan,

Southern Division.

Aug. 29, 2013.

Marshal E. Hyman, Marshal Hyman Assoc., Troy, MI, for Plaintiffs.

Derri T. Thomas, U.S. Attorney's Office, Detroit, MI, for Defendants.

OPINION AND ORDER REGARDING DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT–MATTER JURISDICTION AND FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED AND ORDER TO SHOW CAUSE

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

On March 26, 2009, Maisoun Labaneya filed a Petition for Alien Relative (“Form I–130”) for her husband Radwan Baytiyeh with the United States Citizenship and Immigration Services (“USCIS”). Concurrently, Mr. Baytiyeh filed an application for Adjustment of Status (“Form I–485”) to become a permanent resident. When these matters were not adjudicated by December 17, 2012, Plaintiffs commenced this suit requesting a writ of mandamus ordering Defendants to process their applications within sixty days. Defendants have responded to Plaintiffs' complaint by filing a motion to dismiss for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(1) and (6).

Having reviewed and considered Defendants' motion, the briefs filed by the parties in support of, and in opposition to, the motion, and the exhibits accompanying those briefs, the Court has determined that the relevant allegations, facts, and legal arguments are adequately presented in these submissions, and that oral argument would not aid the decisional process. Accordingly, the Court will decide this matter “on the briefs.” See Eastern District of Michigan Local Rule 7.1(f)(2). This Opinion and Order sets forth the Court's ruling.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Maisoun Labaneya, a native of Syria, and Radwan Baytiyeh, a native of Lebanon, have been married for over 25 years. They were admitted to the United States in January 1990 as J1 non-immigrants. The couple has lived in the United States for over 20 years. They have four children, all of whom were born in the United States and are U.S. citizens.

In 2002, Mrs. Labaneya won a spot in the Diversity Visa Lottery for fiscal year 2003. Thereafter, in order to adjust her nonimmigrant status, she filed a Form I–485, on December 16, 2002, and was granted lawful permanent resident status in September of 2003. In 2009, she became a naturalized United States citizen.

Mr. Baytiyeh also filed a Form I–485 at the same time as his wife, but because USCIS could not complete his background check by the close of the fiscal year, it was required by statute to deny his application. See8 U.S.C. § 1154(a)(1)(I)(ii)(II).

On March 26, 2009, Mrs. Labaneya filed a Form I–130 with USCIS to classify Mr. Baytiyeh as an immediate relative in order for him to obtain a visa. Concurrently, Mr. Baytiyeh filed a new Form I–485 Application for Adjustment of Status. Both filings remained unadjudicated on December 17, 2012 when Plaintiffs commenced this suit.

In their Complaint, Plaintiffs allege violations of the Administrative Procedures Act (“APA”), Immigration and Nationality Act (“INA”), and the Due Process Clause of the Fifth Amendment, all stemming from USCIS's alleged failure to adjudicate the two forms. As relief, they are requesting a writ of mandamus ordering Defendants to process both forms within 60 days, as well as attorney's fees and costs. Plaintiffs name as defendants in this matter Alejandro Mayorkas, Mick Dedvukaj, and Janet Napolitano, all federal employees being sued in their official capacities. Mr. Mayorkas is the duly appointed Director of USCIS, the agency responsible for adjudicating I–130 and I–485 forms. Mr. Dedvukaj is the Detroit District Director of USCIS, and his agency is responsible for deciding I–130 and I–485 forms filed within the Detroit, Michigan district. Mrs. Napolitano is the Secretary of the Department of Homeland Security (“DHS”). USCIS is an agency within, and under control of, the DHS.

In lieu of filing an Answer to Plaintiffs' Complaint, Defendants filed a motion to dismiss. In their motion, Defendants first argue that dismissal of the claim based on the I–130 form is proper because the form was adjudicated after this suit commenced. Plaintiffs do not dispute that since their I–130 form has been adjudicated their claim based on the I–130 form has been rendered moot.

With regard to Plaintiffs' claim based on the Form I–485, Defendants move to dismisspursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6), arguing that the Court lacks subject matter jurisdiction and that Plaintiffs have failed to state a claim upon which relief can be granted.

III. DISCUSSION

A. APPLICABLE STANDARDS

When faced with a question of subject matter jurisdiction, the Court must address that issue before all others. Gross v. Hougland, 712 F.2d 1034 (6th Cir.1983); Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990) (citing Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946) (“The Court will consider the 12(b)(1) motion first, as the 12(b)(6) challenge becomes moot if subject matter jurisdiction is lacking.”)). There are two categories of motions to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1)—facial attacks and factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). A facial attack challenges the court's subject matter jurisdiction based upon the sufficiency of the pleadings. In considering a “facial attack,” a court will consider the material allegations of fact set forth in the complaint as being true and construe them in a light most favorable to the nonmoving party. United States v. Ritchie, 15 F.3d at 598. A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction. Ritchie, supra. On such a motion, no presumptive truthfulness applies to the factual allegations, see Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990), and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. Ritchie, supra. The plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Moir, 895 F.2d at 269.

B. FORM I–485 AND JURISDICTION: AN UNSETTLED POINT OF LAW

Plaintiffs argue that subject matter jurisdiction is found under 28 U.S.C. § 1331 (federal question statute), 28 U.S.C. § 1361 (the Mandamus Act), 5 U.S.C. §§ 702, and 704 (the Administrative Procedures Act), and 28 U.S.C. §§ 2201 and 2202 (the Declaratory Judgment Act). First, the Declaratory Judgment Act does not provide an independent basis for subject matter jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671–72, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). Prior to invoking the Declaratory Judgment Act, a federal court must have jurisdiction under another federal statute. Toledo v. Jackson, 485 F.3d 836, 839 (6th Cir.2007). Similarly, the federal question statute, 28 U.S.C. § 1331, does not provide an independent source for subject matter jurisdiction, as the statute only confers jurisdiction in cases arising under the Constitution and laws of the United States. 28 U.S.C. § 1331. Accordingly, subject matter jurisdiction only exists if it is granted by the Mandamus Act or the APA. See, Toledo v. Jackson, 485 F.3d 836, 839 (6th Cir.2007); Shen v. Chertoff, 494 F.Supp.2d 592, 594 (E.D.Mich.2007); Maftoum v. Chavez, 2007 WL 3203850 at *2 (E.D.Mich. Oct. 31, 2007).

1. Jurisdiction Under the Mandamus Act and the APA

Under the Mandamus Act, a district court has the authority to “compel an officer or employee of the U.S. or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Mandamus relief is a “drastic and extraordinary remedy” that is “only to be reserved for extraordinary situations.” Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). The relief afforded by a writ of mandamus cannot be used to “compel or control a duty in the discharge of which by law [a federal officer] is given discretion” and is only appropriate where petitioner has exhausted all administrative remedies and defendant official owes petitioner a clear and nondiscretionary duty. Work v. United States ex rel. Rives, 267 U.S. 175, 177–78, 45 S.Ct. 252, 69 L.Ed. 561 (1925); Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984).

Under the APA, an agency has a duty to conclude a matter presented to it within a “reasonable time.” 5 U.S.C. § 555(b). The APA allows a court to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). However, the APA does not apply where the statute at issue “precludes judicial review” or the “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a).

District courts across the country are split on whether the Mandamus Act and/or the APA afford subject matter jurisdiction over claims that USCIS failed to adjudicate, or is unreasonably delayed in adjudicating, a Form I–485. Compare Qiu v. Chertoff, 486 F.Supp.2d 412 (D.N.J.2007); Li v. Chertoff, 482 F.Supp.2d 1172 (S.D.Cal.2007); Rogatch v. Chertoff, 2007 WL 1160358 (D.R.I. Apr. 17, 2007); and Mustafa v. Pasquerell, 2006 WL 488399 (W.D.Tex. Jan. 10, 2006) (all finding a lack of subject matter jurisdiction to compel immigration officers to adjudicate the Form I–485), with Kashkool v. Chertoff, 553 F.Supp.2d 1131 (D.Ariz.2008); Linville v. Barrows, 489 F.Supp.2d 1278 (W.D.Okla.2007); Kim v. Ashcroft, 340 F.Supp.2d 384 (S.D.N.Y.2004); Bemba v. Holder, 930 F.Supp.2d 1022 (E.D.Mo.2013); and Irshad v. Napolitano, 2012 WL 4593391 (D.Neb. ...