Kaur v. Chertoff
Decision Date | 31 May 2007 |
Docket Number | Civil Action No. 06-765 (RBW). |
Citation | 489 F.Supp.2d 52 |
Parties | Amarjeet KAUR, et al., Petitioners, v. Michael CHERTOFF, Secretary, Department of Homeland Security, et al., Respondents. |
Court | U.S. District Court — District of Columbia |
Paul Shearman Allen, Paul Shearman Allen & Associates, Washington, DC, for Petitioners.
Peter S. Smith, United States Attorney's Office, Washington, DC, for Respondents.
Petitioners Amarjeet Kaur and Baldwinder Singh Malhi ("the petitioners") bring this action against various individuals in their capacities as officials of the United States Citizenship and Immigration Services ("USCIS") and its parent department, the United States Department of Homeland Security ("DHS") (collectively "the respondents"),1 seeking (1) a writ of mandamus compelling the adjudication of the Form I-130 Immigrant Petition for Alien Relative ("I-130 petition") filed by Kaur on Malhi's behalf on April 28, 2001; and (2) a declaratory judgment stating that the USCIS improperly denied the Form I-765 Application for Employment Authorization ("I-765 application") filed by Malhi on April 12, 2005. Amended Petition for a Writ of Mandamus and Declaratory Judgment ("Pet.") at 1-2. Currently before the Court is the respondents' motion to dismiss the petitioners' petition pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.2 Motion to Dismiss the Amended Petition () at 1. Specifically, the respondents argue, inter alia, that the petition should be dismissed because (1) under the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101 et seq. (2006), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. 104-208, Div. C, 110 Stat. 3009-546 (1996), and the REAL ID Act of 2005, Pub.L. 109-13, Div. B, 119 Stat. 231 (2005), Congress has precluded district courts from exercising jurisdiction over claims similar to those brought in the petition now before this Court that have been filed by or on behalf of aliens, including petitions for writs of mandamus, Memorandum in Support of Motion to Dismiss the Amended Petition () at 16-17 (citing 8 U.S.C. § 1252(g) (2006)); (2) Malhi's failure to voluntarily depart the United States within the timeframe allotted to him statutorily bars him from receiving the relief that he seeks, id. at 5-7 (citing 8 U.S.C. § 1229c(d)(1)(B) (2006)); (3) the petitioners are not entitled to mandamus relief because they have failed to identify any nondiscretionary duty owed to them by the respondents, id. at 14-19; and (4) "events subsequent to the filing of the initial [p]etition in this case [have] provided [the][p]etitioners with their requested relief and ended any live controversy between the parties," id. at 10; see id. at 8-13. For the reasons set forth below, the Court grants the respondents' motion to dismiss.
The following facts are undisputed by the petitioners.3 Malhi, an Indian national entered the United States illegally in October 1996. Pet. ¶ 6 ( ); Resps.' Mem. at 1 ( ); see also Pet.'s Brief at *6 ( )(citation omitted).4 In February 1998, the Immigration and Naturalization Service ("INS") — the predecessor of respondent USCIS and a component agency of the Department of Justice ("DOJ") — commenced deportation proceedings against Malhi, charging him "as an alien present in the United States without admission or parole."5 Pet.'s Brief at 2; see also Resps.' Mem. at 1. At an initial hearing held before an Immigration Judge ("IJ") in August 1999, Malhi conceded that his status made him subject to removal from the United States, Resps.' Mem. at 1; Pet.'s Brief at *1; Brief of the Attorney General in MALHI v. GONZALES, No. 04-73440, 2005 WL 3508595, at *4 (9th Cir. Sep.26, 2005) ("Gov't's Brief") ("Malhi admitted the allegations against him[][and] conceded that he was removable from the United States") that (citation omitted), but asserted several defenses against his deportation, see Pet.'s Brief at * 1; Gov't's Brief at *4-5. In addition to these defenses, Malhi requested that he be permitted to voluntarily depart the United States in lieu of formal deportation or removal. Resps.' Mem. at 1; Pet.'s Brief at *3; see 8 U.S.C. § 1229c(a)(1) ( ).
On. April 13, 2001, while a hearing on the merits of the INS's removal action remained pending, Malhi married co-petitioner Kaur, who was then a legal permanent resident ("LPR") of the United States.6 Pet. ¶ 10. Kaur then submitted an I-130 petition on Malhi's behalf on April 28, 2001, id. ¶ 11; Resps.' Mem. at 2, seeking classification of Malhi as the spouse of an alien lawfully admitted for permanent residence, see 8 U.S.C. § 1154(a)(1)(B)(i) (2006) ( ). Petition, Exhibit ("Ex.") 4 (April 28, 2001 I-130 Petition) at 2-4. Aliens who are classified as immigrant spouses of LPRs can themselves become eligible for adjustment to LPR status, see 8 U.S.C. §§ 1153(a) ( ); see also 8 U.S.C. § 1255 (2006) ( ), although they are subject to stringent immigrant visa quotas, both globally and on a country-by-country basis, before their applications for adjustment can be processed, see 8 U.S.C. §§ 1151(a)(1), 1153(a)(2)(A) (2006).7 In addition, and more importantly, alien spouses who, like Malhi, entered the country illegally and without inspection are only eligible to be considered for adjustment to LPR status if their I-130 petition was filed on or before April 30, 2001. 8 U.S.C. § 1255(i)(1)(B)(i) ( ); see Pet.'s Brief at *9 ( ). Thus, along with the April 2001 I-130 petition, the petitioners also submitted an Application to Register Permanent Resident or Adjust Status ("I-485 application"), seeking the adjustment of Malhi's status from alien to LPR. Pet. ¶ 11; see also Pet., Ex. 4 ( ) at 8-11.
After a March 1, 2002 hearing on the merits of the removal proceedings (and before the INS had acted on the April 2001 I-130 petition), the IJ granted Malhi's request for voluntary departure and denied him relief on all other grounds. Resps.' Mem. at 1; Pet.'s Brief at *4. The Board of Immigration Appeals ("BIA") affirmed the IJ's decision on June 10, 2003, Pet.'s Brief at *5, and Malhi was ultimately directed to report on April 20, 2004, for voluntary departure from the United States, Resps.' Mem. at 1; Pet.'s Brief at *6. However, Malhi failed to comply with the voluntary departure order. Resps.' Mem. at 1; Pet.'s Brief at *9. Rather, he remained in the United States and, on April 21, 2004, moved for the BIA to reopen his removal proceedings on the grounds, inter alia, of ineffective assistance of counsel. Resps.' Mem. at 1-2; Pet.'s Brief at * 10-11. The BIA denied this motion to reopen as untimely on June 9, 2004, and Malhi appealed that decision to the United States Court of Appeals for the Ninth Circuit. Resps.' Mem. at 2; Pet.'s Brief at *11.
On October 18, 2004, Malhi filed an 765 application for an Employment Authorization Document ("EAD"), requesting authorization for employment during the pendency of his I-485 application for an adjustment of his status. Pet. ¶ 14; see also 8 C.F.R. § 274a. 12(c)(9) (2007) ( ). The USCIS denied Malhi's I-765 application on February 14, 2005, concluding that he was ineligible for employment authorization because "[s]ervice records do not indicate [the existence of] ... a pending Form I-485 ... filed with [the agency] ... prior to or concurrent with the filing of the Form I-765." Pet., Ex. 9 ( ) at 1; see also Pet. ¶ 15. Malhi-along with Kaur, who had become a naturalized United States citizen in September 2004, id. ¶ 13-then filed a second I-485 adjustment application (as well as a second I-130 relative immigrant petition) on February 22, 2005, id. ¶ 16, and a renewed I-765 application for an EAD on April 12, 2005, id. ¶ 18. On June 21, 2005, the USCIS denied Malhi's second I-765 application without prejudice,...
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