Brahim v. Holder
| Decision Date | 26 June 2014 |
| Docket Number | CASE NO.: 13-23275-CIV-COHN/SELTZER |
| Court | U.S. District Court — Southern District of Florida |
| Parties | ADEL BRAHIM, Plaintiff, v. ERIC H. HOLDER, JR., Attorney General, Respondent. |
THIS CAUSE is before the Court upon Defendant's Motion to Dismiss Complaint [DE 23] ("Motion"). The Court has considered the Motion, Plaintiff's Response [DE 25] ("Response"), Defendant's Reply [DE 27] ("Reply"), the record in the case, and is otherwise fully advised in the premises.
Plaintiff Adel Brahim ("Plaintiff") seeks judicial review of the denial of his Form I-212 Application for Permission to Reapply for Admission into the United States after Deportation or Removal ("I-212"). Complaint [DE 1] at 2. Since June 1998, Plaintiff has been removed from the United States on five separate accessions, the last occurring on October 17, 2005. Id. at 3. Plaintiff has also been twice convicted of illegal reentry into the United States after removal in violation of 8 U.S.C. § 1326. Id.
According to the Complaint, Plaintiff married a United States citizen, Brooke Ferenchak, on May 27, 2006. Id. On September 26, 2009, Ms. Ferenchak filed an I-130 petition on Plaintiff's behalf. Id. This petition was approved on April 22, 2009. Id. at 3-4. Plaintiff thereafter filed a Form I-212 and Form I-601 Application for Waiver ofGrounds of Inadmissibility ("I-601") at the U.S. Embassy in Tunisia on April 19, 2011. Id. at 4. On December 29, 2011, the United States Citizenship and Immigration Services ("USCIS") Rome District Office denied the Form I-601 pursuant to section 212(a)(9) of the Immigration and Nationality Act ("INA"), 28 U.S.C. § 1182, because Plaintiff had not been outside the Untied States for ten years prior to submitting the I-212 and I-601 petitions. Id. Plaintiff contends that he should be found eligible for the Form I-212 waiver and his I-601 application should be reconsidered. Id. He also maintains that this Court may review USCIS' refusal to adjudicate his I-601 and I-212 petitions under the Administrative Procedures Act. Id.
Defendant has moved to dismiss the Complaint for improper formatting and naming of the Defendant,1 improper venue, failure to specify the basis of this Court's jurisdiction, and failure to state a claim. Plaintiff opposes the Motion.
Federal Rule of Civil Procedure 12(b)(3) allows a party to move to dismiss a case based upon "improper venue." Fed. R. Civ. P. 12(b)(3). When a defendant moves to dismiss the complaint under Rule 12(b)(3), "the plaintiff bears the burden of showingthat the venue selected is proper." Hemispherx Biopharma, Inc. v. MidSouth Capital, Inc., 669 F. Supp. 2d 1353, 1356 (S.D. Fla. 2009). The court may consider evidence outside of the pleadings and may make findings of fact necessary to resolve the motion. Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008). All facts alleged in the complaint are accepted as true, provided they are not controverted by the defendant's evidence. Delong Equip. Co. v. Wash. Mills Abrasive Co., 840 F.2d 843, 845 (11th Cir. 1988). Any actual conflicts must be resolved in the plaintiff's favor. Wai v. Rainbow Holdings, 315 F. Supp. 2d 1261, 1268 (S.D. Fla. 2004).
In actions against United States agencies or officers, venue is proper "in any judicial district in which (A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (C) the plaintiff resides if no real property is involved in the action." 28 U.S.C. § 1391(e)(1). For venue purposes, the residence of a federal agency is the place where the entity performs its official duties. Reuben H. Donnelley Corp. v. F.T.C., 580 F.2d 264, 267 (7th Cir. 1978). Officers and agencies of the United States can have more than one residence and therefore, venue can properly lie in more than one jurisdiction. Bartman v. Cheney, 827 F. Supp. 1 (D.D.C. 1993). However, the mere fact that an agency maintains a regional office in another judicial district does not render it a resident of that district for venue purposes. F.T.C., 580 F.2d at 267.
Federal courts are courts of limited jurisdiction. See 13 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3522 (2d ed.1984 & Supp. 2008). Subject matter jurisdiction challenges may be either facial or factual. Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). "A facial attack on the complaint requires the court to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations of his complaint are taken as true for the purposes of the motion." Smith v. Sec'y, U.S. Dep't of Commerce, 495 F. A'ppx 10, 11 (11th Cir. 2012) (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)).2
In a factual challenge, the court may consider extrinsic evidence such as testimony and affidavits. Lawrence, 919 F.2d at 1529. The Court need not take the allegations in the complaint as true. Id. Instead, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id. "In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. Additionally, the plaintiff "has the burden of proving by a preponderance of the evidence that the trial court does have subject matter jurisdiction." Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
Under Fed. R. Civ. P. 12(b)(6), a court shall grant a motion to dismiss where, based upon a dispositive issue of law, the factual allegations of the complaint cannot support the asserted cause of action. Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308(11th Cir. 2006). Indeed, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, a complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
Nonetheless, a complaint must be liberally construed, assuming the facts alleged therein as true and drawing all reasonable inferences from those facts in the plaintiff's favor. Twombly, 550 U.S. at 555. A complaint should not be dismissed simply because the court is doubtful that the plaintiff will be able to prove all of the necessary factual allegations. Id. Accordingly, a well pleaded complaint will survive a motion to dismiss "'even if it appears that a recovery is very remote and unlikely.'" Id. at 556.
Defendant argues that the Complaint should be dismissed because Plaintiff has failed to meet his burden of establishing that venue is proper in this district. Motion at 8-9. Defendant maintains that the residence of the Defendant is Washington, D.C., because the attorney general performs his official duties there. Id. at 8. Moreover, no events or omissions giving rise to the claim occurred in this district. Id. Finally, the Plaintiff resides outside of the country. Id. at 9. In opposition, Plaintiff argues that venue is proper here because the Plaintiff's spouse, Brooke Ferenchak, a resident of this district, is a party to this action. Response at 6. In the event that Ms. Ferenchak is not a party, Plaintiff requests leave to amend his Complaint to add her as a party. Id.
The Court agrees with Defendant that Plaintiff has failed to establish that venue is proper here. First, the Defendant resides in Washington, D.C., not the SouthernDistrict of Florida, for venue purposes. See 28 U.S.C. § 1391(e)(1)(A); F.T.C., 580 F.2d at 267. Second, no events or omissions giving rise to the claim occurred in this district because Plaintiff's I-601 and I-212 applications were considered at the USCIS field office in Rome, Italy, not the Southern District of Florida. See 28 U.S.C. § 1391(e)(1)(B); Compl. at 4. Finally, the Plaintiff's wife is not a named party in this action-despite Plaintiff's protestations to the contrary3-- and Plaintiff resides in Tunisia. Thus, venue under 28 U.S.C. § 1391(e)(1)(C) is not proper.
Defendant next argues that the Complaint should be dismissed because Plaintiff has failed to state a basis for federal jurisdiction. Motion at 10. Additionally, Defendant contends that the Court only would have jurisdiction to determine whether Plaintiff has met the statutory requirements to file an I-212 application; the Court lacks jurisdiction to review the Secretary of Homeland Security's discretionary decision whether to grant the I-212 application. Id. at 10-11. In opposition, Plaintiff contends that this Court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D) and that the Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. Response at 9. Plaintiff also maintains thatthe Court has jurisdiction pursuant to the Administrative Procedure Act, 5 U.S.C. § 702 ("APA"). Id.
The Court agrees with Defendant that the Complaint fails to state a basis for federal jurisdiction. Nowhere does the Complaint reference 28 U.S.C. § 1331. See Reply at 5. It is axiomatic that a plaintiff may not amend his Complaint in a response to a motion to dismiss. See Long v. Satz, 181 F.3d 1275, 1278-79 (11th Cir. 1999)); see also Bruhl v. PriceWaterhouseCoopers Int'l, No. 03-23044, 2007 WL 997362, at *4 (S.D. Fla. Mar. 27, 2007) (...
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