Hossain v. Johnson, 15-CV-0122 (MKB)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtMARGO K. BRODIE, United States District Judge
Docket Number15-CV-0122 (MKB)
Decision Date30 December 2015

and SHEULY AKTER, Plaintiffs,
JEH JOHNSON, Secretary of United States Department of Homeland Security, and

15-CV-0122 (MKB)


December 30, 2015


MARGO K. BRODIE, United States District Judge:

Plaintiff Mohammed Ferdous Hossain, also known as Ferdous Wahid and Mohammed G. Hossain, and Plaintiff Sheuly Akter commenced this action against Defendants Jeh Johnson, Secretary of the United States Department of Homeland Security, and the New York District Director of United States Immigrations and Customs Enforcement. (Compl. 3, ¶¶ 9-12.1) Plaintiffs seek (1) a mandamus order pursuant to the Mandamus and Venue Act, 28 U.S.C. § 1361, (the "Mandamus Act"), compelling Defendants to "act on and cause issuance of consent to join" a motion to reopen Hossain's deportation proceeding and to perform a meaningful review of the motion, (id. at 16-17, ¶¶ 29-32), and (2) a declaratory judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 ("DJA"), declaring that Defendants' refusal to join

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Plaintiffs' motion to reopen Hossain's removal proceeding was "without basis in fact or law" and that Defendants must hold all hearings on the motion allowing Hossain to seek lawful status, (id. at 18-19, ¶¶ 33-36). Plaintiffs also seek attorneys' fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. (Id. at 2, ¶ 4; id. at 19-20, ¶¶ 38-41.) Defendants move to dismiss the Complaint for lack of subject matter jurisdiction and for failure to state a claim. (Defs. Resp. to Order to Show Cause ("Defs. Resp."), Docket Entry No. 6.) As explained below, because the Court lacks subject matter jurisdiction over Plaintiffs' claims, the Court dismisses the action.

I. Background

Hossain is a native and citizen of Bangladesh. (Compl. 3, ¶ 9.) On June 13, 1995, Hossain was admitted to the United States as a visitor under the alias "Mohammed Golam Hossain."2 (Id. at 5, ¶ 19.) Later that year, under the alias "Ferdous Wahid," Hossain filed an application for asylum and a Form I-589 Application or Asylum and for Withholding of Removal, which was referred to an Immigration Judge ("IJ"). (Id.) On September 15, 1995, a deportation proceeding was commenced against Hossain. (Id.; Compl. Ex. B ("Ex. B") at 146.3) On November 13, 1995, the IJ denied Hossain's asylum application. (Compl. 5, ¶ 20; Ex. B at 147.) Hossain appealed the denial to the Board of Immigration Appeals ("BIA"), but the appeal

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was summarily dismissed. (Compl. 5, ¶ 21.) Since that time, Hossain has been subject to a final order of deportation. (Id.)

Plaintiff Akter is a United States citizen and Hossain's wife. (Id. at 3, ¶ 10.) In 2003, she filed a Form I-130 Petition for Alien Relative ("I-130 Petition") for Hossain, which was approved. (Id. at 5, ¶ 22.) Thereafter, under the alias "Ferdous Wahid," Hossain moved to reopen his removal proceeding, and his counsel asked BIA to join in that motion.4 (Id. at 3-4, ¶ 13.) Hossain sought to reopen the proceeding to allow him to file a Form I-601 Application for Waiver of Grounds of Inadmissibility and to seek an adjustment of status to that of "a lawful resident alien," based on the approved I-130 Petition. (Id.) On December 14, 2007, the BIA denied Hossain's motion to reopen his removal proceedings as untimely, having been filed ten years after the BIA issued its decision denying Hossain's applications for asylum and withholding of deportation. Wahid v. Mukasey, No. 08-0062, 2008 WL 4585341, at *1-2 (2d Cir. Oct. 15, 2008). On October 15, 2008, the Second Circuit denied Hossain's petition for review of the BIA's decision, affirming the BIA's determination that Hossain's motion was untimely.5 Wahid, 2008 WL 4585341, at *2.

On December 16, 2013, an attorney for Hossain signed a proposed joint motion to reopen Hossain's removal proceedings. (Ex. B at 68-112.) At some point, this proposed joint motion was sent to the United States Department of Homeland Security ("DHS"). (See Ex. A at 22.) After DHS declined to join the motion to reopen, Plaintiffs commenced this proceeding. (Id.)

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II. Discussion

a. Standards of review

i. Rule 12(b)(1)

A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the court "lacks the statutory or constitutional power to adjudicate it." Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.A.R.L., 790 F.3d 411, 416-17 (2d Cir. 2015) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir. 2013) (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)). The plaintiff has the burden to prove that subject matter jurisdiction exists, and in evaluating whether the plaintiff has met that burden, "'[t]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,' but 'jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'" Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citations omitted), aff'd, 561 U.S. 247 (2010). A court may consider matters outside of the pleadings when determining whether subject matter jurisdiction exists. M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir. 2013); Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010).

ii. Rule 12(b)(6)

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must "accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Tsirelman v. Daines, 794 F.3d 310, 313 (2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)); see also Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011)

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(quoting Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 320 (2d Cir. 2009)). A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Matson, 631 F.3d at 63 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717-18 (2d Cir. 2013). Although all allegations contained in the complaint are assumed true, this principle is "inapplicable to legal conclusions" or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678.

b. The Court lacks subject matter jurisdiction

The government asserts that the Court lacks subject matter jurisdiction because the Immigration and Nationality Act, 5 U.S.C. § 555 et seq. ("INA"), vests the Second Circuit with exclusive jurisdiction over Plaintiffs' claims and the proffered statutory bases for the Court's jurisdiction cannot overcome the INA's jurisdictional bar. (Defs. Resp. 6-8.) Plaintiffs contend that the INA does not apply to their claims, and they assert that the Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, the Mandamus Act, the Administrative Procedures Act ("APA"), 28 U.S.C. § 1356, also known as the Little Tucker Act, and the DJA. (Compl. 2, ¶ 5; Pls. Reply. to Defs. Resp. ("Pls. Reply") 2-3, Docket Entry No. 8.)

Pursuant to the INA, as amended by the REAL ID Act of 2005 ("REAL ID Act"), the Second Circuit Court of Appeals has exclusive jurisdiction over reviews of removal proceedings. 8 U.S.C. § 1252(a)(5) ("[A] petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order

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of removal . . . ."); REAL ID Act of 2005, Pub. L. No. 109-13, § 106(b), 119 Stat. 231, 311 (May 11, 2005); see also Ruiz-Martinez v. Mukasey, 516 F.3d 102, 113 (2d Cir. 2008) ("[T]he appropriate Courts of Appeals were to be the 'sole and exclusive means for judicial review' of final orders of removal." (quoting 8 U.S.C. § 1252(a)(5))). The REAL ID Act amendments to the INA, including the jurisdiction-stripping provisions, were also retroactive and, by their express terms, "applied to cases 'in which the final administrative order of removal, deportation or exclusion was issued before, on or after' [the REAL ID Act's] effective date of May 11, 2005." Ruiz-Martinez, 516 F.3d at 113 (quoting REAL ID Act, § 106(a), 119 Stat. at 310); see also Gittens v. Menifee, 428 F.3d 382, 384-85 (2d Cir. 2005) (per curiam) ("By its express terms, the [REAL ID] Act is retroactive and applies to cases in which the final administrative order of removal, deportation, or exclusion was issued before, on, or after the date of enactment." (citations and internal quotation marks omitted)).

The Second Circuit has held that the INA's jurisdictional bar applies equally to indirect challenges to an order of removal. Delgado v. Quarantillo, 643 F.3d 52, 54 (2d Cir. 2011). In Delgado, the petitioner, who was subject to an order of removal that had been reinstated, brought a mandamus action to compel adjudication of her request for permission to reapply for admission to the United States, which was related to her pending "adjustment of status" application. Id. at 53-54. The petitioner asserted that the district court had jurisdiction over the mandamus petition because she was not challenging her order of removal and, therefore, her claim was not subject to the INA's jurisdictional bar. Id. at 55. The Second Circuit rejected that argument and found that if the...

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