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

• Decision Date: 19 August 2013
• Docket Number: Case No. 1:12–cv–02881.
• Citation: 962 F.Supp.2d 939
• Parties: Liban Muse JAMA, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

962 F.Supp.2d 939

Liban Muse JAMA, Plaintiff,

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

Case No. 1:12–cv–02881.

United States District Court,

N.D. Ohio,

Eastern Division.

Aug. 19, 2013.

Danja Higuera, Brian J. Halliday, Law Office of Brian J. Halliday, Beachwood, OH, for Plaintiff.

Erez Reuveni, U.S. Department of Justice, Washington, DC, Lisa Hammond Johnson, Office of the U.S. Attorney, Cleveland, OH, for Defendants.

MEMORANDUM OPINION

DAVID D. DOWD, JR., District Judge.

Plaintiff Liban Muse Jama (“Jama”) filed suit challenging actions taken by the United States Citizenship and Immigration Services (“USCIS”) which resulted in the initiation of removal proceedings against Plaintiff. These actions include (1) the termination of Jama's refugee status, (2) the denial of his application to adjust status, and (3) the denial of his fraud waiver application.

This Court issued an order referring the case to Magistrate Judge Kathleen B. Burke for general pre-trial supervision. Defendants then filed 12(b)(1) and 12(b)(6) motions to dismiss. R. 14. The Magistrate Judge bifurcated the motions and recommends the 12(b)(1) motion to dismiss for lack of subject matter jurisdiction be granted. R. 31, PageID# : 551. Plaintiff filed his objections to the Magistrate Judge's Report and Recommendation, and Defendants filed a response to those objections. R. 32, 33. For the reasons that follow, the Court adopts the reasoning of the Magistrate Judge's Report and Recommendation that concludes Defendants' 12(b)(1) motion to dismiss for lack of subject matter jurisdiction be granted.

Defendants' 12(b)(1) motion to dismiss is hereby GRANTED and Plaintiff's action is dismissed without prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Liban Muse Jama, a resident of the Northern District of Ohio, is a Somalian native and citizen admitted into the United States in 2000 as a result of an I–590 application he filled out in 1999. See R. 1, ¶¶ 2–3, 11, 22. On this I–590 application, Jama listed his date of birth as being in 1985 and indicated he was unmarried, had no children, and that his mother was Dahabo Gelle Mohamed and his father was Muse Jama Ali. See R. 24–1, PageID# : 244–247. Plaintiff's complaint, filed November 19, 2012, seeks review by this Court of actions taken by the USCIS which resulted in the currently pending removal proceedings against him. See R. 1, PageID# : 20; see also R. 31 PageID# : 550. These USCIS actions include (1) the termination of his refugee status, (2) the denial of his application to adjust status, and (3) the denial of his application for fraud waiver. R. 1, PageID# : 20.

On November 12, 2010, after having provided inconsistent information in several immigration forms (including the I–590 application), Jama made sworn statements to the USCIS that he used different dates of birth in order to obtain employment, and that Jama's biological mother actually died in 1981 and his biological father died in 1997. See R. 1, ¶ 29; see also R. 24–1, PageID # : 238–39. Jama also stated that, because of Somali custom as opposed to formal legal proceedings, his aunt, Dahabo Gelle Mohammed became his mother after his biological mother died. R. 24–1, PageID# : 239.

As a consequence of these inconsistencies, the USCIS issued its notice of intent to terminate Jama's refugee status on February 17, 2011, because it found that Jama, at the time he applied for refugee status, was “not admissible to the United States as a derivative child of an alien classified as a principal refugee in that Dahabo Gelle Mohamed is not your biological mother or legally adoptive mother, and that at the time you were in fact married to Faumo Isxaq Adan in Kenya and are the father of five children born your wife.” ¹Id. at PageID# : 186–87.

On April 8, 2011, USCIS issued its notice to terminate refugee status and denied Jama's I–602 application as well as his second I–485 application. Id. at PageID# : 170–178; 192–196. On April 14, 2011, Jama's application to reopen, filed two days earlier, was denied. Id. at PageID# : 198. On August 17, 2011, the USCIS initiated removal proceedings. Id. at PageID# : 227–28. The Immigration Judge issued decisions in the removal proceedings on June 14, 2012 and August 8, 2012. See R. 28–1, 26–1. The removal proceedings remain pending. R. 31, PageID# : 559.

On November 19, 2012, Plaintiff filed suit in this Court, alleging four causes of action: (1) “Violation of Due Process”; (2) “Any misrepresentations in Mr. Jama's immigration record are immaterial as he meets the definition of refugee at the time of admission within the meaning of the Immigration and Nationality Act and the U.N. Protocol and Convention”; (3) “Termination of Mr. Jama's refugee status by USCIS contradicts the principles of the U.N. Convention”; and (4) “The U.S. Department of Homeland Security has no authority to terminate refugee status.” R. 1, PageID# : 8–18.

After the Court referred the case to Magistrate Judge Kathleen B. Burke for general pretrial supervision, Defendants filed motions to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. R. 14. The Magistrate Judge considered the 12(b)(1) motion first and issued a Report and Recommendation. R. 31.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

The Magistrate Judge concludes this Court does not have jurisdiction to review Jama's claims because judicial review is only available if this matter concerns a “final agency action for which there is no other adequate remedy in a court” and here Jama cannot meet the first prong of the Bennett test which determines when agency action is “final.” ² R. 31, PageID# : 567–70 (citation omitted). More specifically, “rather than marking the ‘consummation of the agency's decisionmaking process,’ the USCIS's termination of Jama's refugee status was only an intermediate step in that process.” Id. at PageID # : 570 (citation omitted). As such, the Magistrate Judge recommends Defendants' motion to dismiss for lack of subject matter jurisdiction be granted. Id. at PageID# : 551.

The Magistrate Judge identifies two additional reasons the Court lacks jurisdiction. First, 8 U.S.C. § 1252(a)(5) and (b)(9) channel review of immigration decisions, such as this, to the courts of appeal. Since “the USCIS's termination of Plaintiff's refugee status constitutes an action taken to remove an alien from the United States,” the “review of th[at] termination decision is channeled by § 1252(b)(9)” to “ ‘vest[ ] exclusively in the courts of appeal.’ ” Id. at PageID# : 575 (citing Aguilar v. ICE, 510 F.3d 1, 9–13 (1st Cir.2007)).

Next, the Magistrate Judge finds 8 U.S.C. § 1182(i)(2) “forecloses judicial review of th[e] discretionary decision” of the Attorney General “to grant or deny a request for a waiver of inadmissibility based on fraud or misrepresentation.” Id. at PageID# : 576. The Magistrate Judge rejects Jama's argument that Jama “is not seeking review of the merits of the USCIS's denial of his application for a fraud waiver” but instead “wants the Court to review the USCIS's ‘absolute refusal to adjudicate and render a legally reasoned decision on Mr. Jama's waiver application.’ ” Id. at PageID# : 576 (citation omitted).

Because the actions of which Jama seeks review are not final agency actions, and this statute alternatively prohibits review by district courts, the Magistrate Judge recommends Defendants' 12(b)(1) motion to dismiss for lack of subject matter jurisdiction be granted.³

PLAINTIFF'S OBJECTIONS TO THE REPORT AND RECOMMENDATION

Plaintiff Jama makes a total of twenty-two objections to the Magistrate Judge's Report and Recommendation which Plaintifforganizes into five different categories. They are:

A. “Factual objections”

One. Jama objects to the Magistrate Judge's statement that Jama “ ‘sought derivative refugee status as the child of a principal alien classified as a refugee’ ” because “derivative refugee status does not exist in the immigration law as a lawful admission status.” R. 32, PageID# : 585 (quoting R. 31, PageID# : 552).

Two. Jama objects to the Magistrate Judge's characterization that Jama provided his name, date of birth, and family information to the “U.S. Government Officer who completed his I–590 application” because Jama's “sworn statement to USCIS on November 12, 2010 makes it clear that the only information he directly supplied to the U.S. Government Officer who completed his I–590 application was his name” because “[h]is sworn statement also indicates that the same U.S. Government Officer filled out the form in response to questions that his aunt answered through an interpreter.” Id. at PageID # : 586.

B. “Objections to the Magistrate Judge's Portrayal of Plaintiff's Claims”

One. Jama objects to substantive findings made by the Magistrate Judge that are “beyond the scope of the 12(b)(1) jurisdictional issue at hand.” R. 32, PageID# : 586. He states that “[t]he references to due process violations made by Mr. Jama in his Brief in Opposition of the Motion to Dismiss were not supplied to supplement Count 1 of the Complaint,” a due process claim. Instead, Mr. Jama argues he articulates a separate argument that the denial by this Court of jurisdiction would violate due process, and that “these two arguments are unrelated and do not contradict each other, as the” Magistrate Judge suggests. Id. at PageID# : 587.

C. “Objections to Magistrate Judge's Recommendations with Respect to the Finality Rule Under Section 704 of the APA”

One. Jama objects to the Magistrate Judge's reliance on Qureshi v. Holder for the conclusion that termination of refugee status is not final agency action because the Immigration Judge and the BIA “retain the power to halt removal proceedings altogether.” R. 32, PageID# : 588 (citation and internal quotes omitted). Jama argues “the power of the IJ and BIA to ‘halt removal proceedings altogether’ based on other, unrelated forms of relief, can...