Farag v. U.S. Citizenship and Immigration Services

• Decision Date: 22 January 2008
• Docket Number: No. 06 Civ. 2735(JES).,06 Civ. 2735(JES).
• Citation: 531 F.Supp.2d 602
• Parties: Helal K. FARAG, Plaintiff, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES and Department of State, Defendants.
• Court: U.S. District Court — Southern District of New York

531 F.Supp.2d 602

Helal K. FARAG, Plaintiff, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES and Department of State, Defendants.

No. 06 Civ. 2735(JES).

United States District Court, S.D. New York.

January 22, 2008.

COPYRIGHT MATERIAL OMITTED

Victor B. Sedhom, Esq., New York, NY, for Plaintiff.

Michael J. Garcia, United States Attorney, Southern District of New York, F. James LoPrest, Jr., Special Assistant United States Attorney, of Counsel, New York, NY, for Defendants.

MEMORANDUM OPINION & ORDER

SPRIZZO, District Judge.

Plaintiff, Helal K. Farag ("plaintiff' or "Farag"), brings this action against defendants, U.S. Citizenship and Immigration Services ("USCIS") and the Department of State (the "American Embassy at Cairo" or the "Embassy"), for declaratory and mandamus relief involving petitions for derivative asylum for plaintiffs family. Defendants filed a Motion to Dismiss for lack of subject matter jurisdiction and failure to state a claim on which relief can be granted under Fed.R.Civ.P. 12(b)(1) and (6), dated November 20, 2006. Plaintiff filed a Response, dated June 21, 2007. Plaintiff withdrew his request for oral argument by letter dated October 4, 2007. The Government did not oppose that withdrawal. The Court, for the reasons set forth below, hereby grants the Government's Motion to Dismiss.

BACKGROUND

Plaintiff, a Coptic Orthodox Egyptian, was granted asylum on June 8, 2001. See Am. Compl. ¶ 8.I. On February 11, 2003, plaintiff sent four Aslyee Relative Petitions (Form I-730) (hereinafter "derivative asylum petitions or "petitions") for his wife, Madlin, and three children, Heba (disabled), Noha, and Abanoub, to the American Embassy at Cairo. See id. On March 19, 2003, plaintiff sent a letter to the Embassy requesting that the four petitions be returned or sent to the appropriate place for filing-the USCIS office in Nebraska ("Nebraska Service Center"). See id. ¶ 8.II. On March 24, 2003, an employee at the Embassy sent plaintiff a letter stating that he could not process the petitions before they were approved by the INS.¹ See 8.II. Over a year later, in May 2004, plaintiff sent e-mails to the Embassy inquiring about the status of the petitions See id. ¶ 8.IV-V. In.June 2004, the Nebraska Service Center sent plaintiff a notice stating that it had received his petitions on June 1, 2004. See id. ¶ 8.VI. Following receipt of this notice, plaintiff faxed a letter to the Nebraska Service Center and sent an e-mail to the Embassy requesting that the date be changed to February 11, 2003, the date the petitions were sent to the Embassy. See id. ¶ 8.VI-VIII. In June 2005, the USCIS denied the petitions because they were filed after the two-year deadline.² See id. ¶ 8.IX. This denial specifically noted that "evidence of Mr. Victor Sedhom's communications with the Embassy of the United States in Cairo[] indicate the error in filing the petitions with that office was discovered in sufficient time, such that a duplicate application could, have been signed and sent with appropriate duplicate documentation to the Nebraska Service Center" which would have met the two-year deadline. See id., Ex. Moreover, it noted that since there is no filing fee, there would be no undue hardship in filing these duplicates. See id., Ex. N. It also stated that an "error, in filing do[es] not constitute appropriate grounds ... to extend the filing requirements." See id. On July 10, 2005, plaintiff filed four new petitions which cited his proposed humanitarian reason for extending the deadline.³ See id. ¶ 8.X. These, too, were denied. See id. ¶ 8.XII.

Plaintiff seeks an order from this Court requiring defendants to change, the date of receipt of his derivative asylum petitions to February 11, 2003.

DISCUSSION

On a motion to dismiss, a court must accept all of the allegations set forth in the complaint as true and must draw all reasonable inferences in favor of the plaintiffs. Rombach v. Chang, 355 F.3d 164, 169 (2d Cir.2004); Halperin v. eBanker USA.com, Inc., 295 F.3d 352, 356 (2d Cir.2002). Dismissal is appropriate only when it is clear that the plaintiffs can prove no set of facts "in support of their claims that would entitle them to relief." Halperin, 295 F.3d at 356.

It should also be noted from the outset that "judicial deference to the Executive Branch is especially appropriate in the immigration context," see INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999), and that the "Supreme Court has cautioned against improvidently encroaching on the authority which the [INA] confers on the Attorney General and his delegates," see Dhine v. Slattery, 3 F.3d 613, 619 (2d Cir.1993) (internal quotations omitted).⁴ The Court acknowledges that though "judicial defer[ence] is not summar[y] or blind defer[ence]," see Pl.'s Br. at 9, some deference to the immigration authorities is nonetheless required.

A. Subject Matter Jurisdiction

Plaintiff bears the burden of proving jurisdiction. See Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996). Farag asserts jurisdiction under 28 U.S.C. §§ 1329,⁵ 1331, 1361, and 2202. See Am. Compl. ¶ 4.

1. Title 8, Aliens and Nationality, 8 U.S.C. § 1329

This section confers jurisdiction on district courts to hear "all causes, civil and criminal, brought by the United States that arise under the provisions of this title." See 8 U.S.C. § 1329 (emphasis added). It specifically notes that "[n]othing in this section shall be construed as providing jurisdiction for suits against the United States or its agencies or officers." See id. The Supreme Court has confirmed that this section "clear[ly] ... applies only to actions brought by the United States." See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 477 n. 4, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). As this suit is brought by Farag against agencies of the United States Government, 8 U.S.C. § 1329 does not provide for jurisdiction in this Court.

2. Federal Question Jurisdiction, 28 U.S.C. § 1331

Section 1331 provides that federal district courts "shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." See 28 U.S.C. § 1331. An action presents a federal question "where the complaint includes allegations either that [federal law] creates the cause of action or that [federal law] is a necessary element of the claim or that some right or interest will be defeated or sustained by a particular construction" of the Constitution or a federal statute. See Franchi v. Manbeck, 947 F.2d 631, 633 (2d Cir.1991); Huli v. Way, 893 F.Supp.2d 266, 271 (S.D.N.Y. 2005). To invoke jurisdiction under this statute, plaintiff must make a claim that arises from an applicable federal statute or constitutional provision. See Huli, 393 F.Supp.2d at 271. Farag does not specifically allege violation of any other federal statute or constitutional provision in his Amended Complaint. To the extent that he may generally allege a violation of the Immigration and Naturalization Act, that would be insufficient because "that statute does not itself create a cause of action' Or federally-protected right or interest in derivative asylum status." See id. Several circuits have explicitly, noted that federal law does not recognize any right for a Citizen, or an asylee, to have alien family members present in the United States. See Anetekhai v. INS, 876 F.2d 1218, 1222 n. 5 (5th Cir.1989); Almario v. Attorney General, 872 F.2d 147, 151 (6th Cir.1989); Burrafato v. U.S. Dep't of State, 523 F.2d 554, 555 (2d Cir.1975); Silverman v. Rogers, 437 F.2d 102, 107 (1st Cir.1970); Swartz v. Rogers, 254 F.2d 338 (D.C.Cir. 1958). In fact, plaintiff does not even have a protected interest in his own immigration status. See Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir.1990) (holding that an alien undergoing deportation proceedings and alien spouse do not have a constitutionally-protected property right to an immigrant visa); Yilmaz v. McElroy, 2001 WL 1606886, *3, 2001 U.S. Dist. LEXIS 20839, at *9 (S.D.N.Y, Dec. 17, 2001).

Plaintiff argues that "[c]omplaints may either refer to the appropriate jurisdictional statute or contain factual assertions that, if proved, establish jurisdiction."⁶ See Pl.'s Br. at 11. He suggests in his Amended Complaint that Embassy personnel discriminated against him because he is a Christian, resulting in a potential Constitutional violation. See Am. Compl. ¶ 8.XII ("The reason for hiding the original petition until the time expired is that the bearded and veiled Muslim staff in the Consulate was hiding them."), Exs, O & Q ("From my experience in dealing with the Consulate in similar issues, similar incidents occurred with the Coptic Orthodox applicants and petitioners and I have a strong feeling that the record was hidden by some of the bearded and veiled Muslim staffs in the Consulate.").⁷ Plaintiff's suggested inference of discrimination based on his reference to the Embassy employee's erroneous employment advice and to discrimination in the granting of visas, see discussion at fn.7, is based largely on vague and unsubstantiated facts that do not apply to the matter at, hand. Therefore, it is clear that this Court does not have jurisdiction under 28 U.S.C. § 1331 as a result of a constitutional violation.

3. The Mandamus Statute, 28 U.S.C. § 1361

A federal district court may issue a writ of mandamus under 28 U.S.C. § 1361 to compel fulfillment of obligations only where a federal official has a clear obligation to perform a duty. See Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984). Granting derivative asylum rests entirely within the discretion of the USCIS.⁸ See 8 U.S.C. § 1158(b)(3)(A) ("A spouse or child ... of an alien who is granted asylum under this subsection may ... be granted the same status.") (emphasis added). As the Attorney General is not required to grant asylum to applicants who meet the eligibility standards, he...