Kilani-Hewitt v. Bukszpan

• Decision Date: 08 September 2015
• Docket Number: No. 13 Civ. 8473(PAC)(FM).,13 Civ. 8473(PAC)(FM).
• Citation: 130 F.Supp.3d 858
• Parties: Salma KILANI–HEWITT and Cecil Hewitt, Plaintiffs, v. Immigration Judge Joanna M. BUKSZPAN, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

130 F.Supp.3d 858

Salma KILANI–HEWITT and Cecil Hewitt, Plaintiffs,

v.Immigration Judge Joanna M. BUKSZPAN, et al., Defendants.

No. 13 Civ. 8473(PAC)(FM).

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

Signed Sept. 8, 2015.

Salma Kilani-Hewitt, pro se.

Cecil Hewitt, pro se.

Kirti Vaidya Reddy, New York, NY, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

PAUL A. CROTTY, District Judge:

Pro se Plaintiffs Salma Kilani–Hewitt and Cecil Hewitt ("Plaintiffs") bring suit against Joanna M. Bukszpan, the immigration judge overseeing Salma Kilani–Hewitt's application for adjustment of resident status, and Gioia Maiellano, an attorney for the Department of Homeland Security. Plaintiffs request that the Court adjudicate Kilani–Hewitt's application or compel Defendants to promptly decide on her application. Defendants move to dismiss the complaint for lack of subject matter jurisdiction.

On August 6, 2015, Magistrate Judge Frank Maas issued a Report and Recommendation ("R & R") on the motion.¹ Magistrate Judge Maas recommends granting Defendants' motion because the Court lacks subject matter jurisdiction over Defendants' claim. R & R at 7–12. Specifically, Magistrate Judge Maas finds that 8 U.S.C. § 1252(g), which prevents courts from intervening in matters involving the Attorney General's exercise of her discretion to "commence proceedings, adjudicate cases, or execute removal orders," bars the Court from "second-guessing the IJ's decision to adjudicate a case." R & R at 12. Because the relief Plaintiffs request "would limit the Attorney General's discretion to ‘adjudicate’ Kilani–Hewitt's case—an act that is specifically excluded from this Court's purview pursuant to Section 1252(g)," R & R at 10, Magistrate Judge Maas recommends dismissing the complaint in its entirety.

The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Where neither party has made written objections to the report, the Court may adopt the report "so long as there is no clear error on the face of the record." Feehan v. Feehan, 2011 WL 497776, at *1 (S.D.N.Y. Feb. 10, 2011). The parties had fourteen days after being served with the R & R to file written objections; the failure to do so results in the waiver of any objections. Grady v. Conway, 2015 WL 5008463, at *3 (S.D.N.Y. Aug. 24, 2015).

Accordingly, the Court reviews the R & R for clear error. Finding none, the Court adopts Magistrate Judge Maas's R & R in its entirety, and Defendants' motion to dismiss is granted. The Clerk of the Court is directed to enter judgment and close this case.

SO ORDERED.

REPORT AND RECOMMENDATION TO THE HONORABLE PAUL A. CROTTY

FRANK MAAS, United States Magistrate Judge.

This pro se case represents the latest in a series of efforts by plaintiffs Salma Kilani–Hewitt ("Kilani–Hewitt") and her husband Cecil Hewitt ("Cecil") (together, the "Plaintiffs") to secure permanent resident status for Kilani–Hewitt, who is currently the subject of removal proceedings. The defendants are the United States of America; Immigration Judge ("IJ") Joanna M. Bukszpan, sued in her official capacity; and Gioia Maiellano, sued in her official capacity as a Department of Homeland Security ("DHS") employee (collectively, the "Defendants"). Although most persons involved in removal proceedings have no interest in expedition, this case is the exception. The Plaintiffs thus ask the Court either to adjudicate Kilani–Hewitt's eligibility for permanent resident status itself or to compel the Defendants to render a prompt decision regarding her reopened application for permanent resident status. In their view, this relief is warranted because a decision with respect to Kilani–Hewitt's application has been unreasonably delayed.

The Defendants have moved to dismiss the Plaintiffs' complaint, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, for lack of subject matter jurisdiction. For the reasons set forth below, whatever the merits of Kilani–Hewitt's application for adjustment of status may be, the Defendants' motion should be granted because this Court lacks jurisdiction to act.

I. Relevant Facts

The following facts, derived largely from the Complaint and the exhibits thereto, are assumed to be true for present purposes.

Kilani–Hewitt is a native of Iraq and a citizen of Jordan who entered the United States in November 1998. (ECF No. 1 ("Complaint" or "Compl."), Ex. B ("BIA Decision and Order") at 2). Since then, she has sought to adjust her immigration status in this country on several different grounds. First, in 1999, Kilani–Hewitt sought "refugee" or "asylum" status based on her membership in Iraq's Ba'ath political party.¹ (Id. ). In her application, Kilani–Hewitt indicated that she was a Muslim. (Id. ). Kilani–Hewitt subsequently withdrew that application in 2003. (Id. at 1).

One year later, in 2004, Kilani–Hewitt submitted a new application for asylum based on her conversion to Christianity. (Id. at 2–3). By this time, however, she had been placed in removal proceedings. (Id. at 1). For this reason, any adjudication of her application for adjustment of her immigration status had to occur before an IJ, rather than the United States Citizenship and Immigration Service ("USCIS"). See 8 C.F.R. § 1245.2(a)(1)(i).

On April 3, 2008, an IJ issued a written decision denying Kilani–Hewitt's second application for asylum. (BIA Decision and Order at 1). One of the bases for the IJ's decision was that Kilani–Hewitt "had not established that she would be persecuted in either Iraq or Jordan based on her Christianity" (Id. at 2). The IJ's decision became final after it was affirmed by the Board of Immigration Appeals ("BIA") on April 23, 2010. (See id. at 1–3).

In October 2003, Kilani–Hewitt married Cecil, an American citizen, who filed an immediate relative visa petition on Kilani–Hewitt's behalf. (Id. at 1). That filing was the first step in the process of seeking permanent resident status for Kilani–Hewitt by reason of her marital status.² Cecil's petition was denied based on a finding that the couple had "failed to establish the bona fides of their marriage." (Id. at 2 n. 2). A second petition filed in August 2004 was deemed abandoned in April 2005 after the Plaintiffs failed to appear for a scheduled interview. (Id. ).

On January 2, 2013, Kilani–Hewitt moved to reopen her application for adjustment of resident status. (Compl. Exs. A, D). Thereafter, on March 18, 2013, the BIA granted that motion, which was unopposed, and remanded her case to an IJ for further findings. (See id. Ex. A). Accordingly, on April 23, 2013, IJ Bukszpan scheduled a hearing regarding Kilani–Hewitt's application for adjustment of resident status for October 14, 2015. (Id. Ex. C). Kilani–Hewitt's application therefore may soon be heard, even in the absence of judicial intervention.

Not content with the pace at which Kilani–Hewitt's application was proceeding, the Plaintiffs commenced this action on November 26, 2013. In their Complaint, the Plaintiffs allege that IJ Bukszpan's decision to schedule a hearing some two and one-half years after the BIA remand was without "proper reason," the product of her "neglect of her duties to diligently and timely resolve this case," and a violation of Kilani–Hewitt's due process rights. (Compl. at 1; ECF No. 20 ("Pls.' Opp.") at 1–4).

II. Standard of Review

The Defendants seek dismissal of the Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Under Rule 12(b)(1), a court must dismiss a complaint if the court lacks subject matter jurisdiction over the claims asserted. In resolving the issue of subject matter jurisdiction, a court is not limited to the face of the complaint and may consider evidence outside the pleadings. Phifer v. City of N.Y., 289 F.3d 49, 55 (2d Cir.2002). The plaintiff has the burden of demonstrating the court's subject matter jurisdiction by a preponderance of the evidence, Id. (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) ); see also Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998) ("[j]urisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.").

III. Discussion

Kilani–Hewitt alleges that this Court has subject matter jurisdiction pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., the Mandamus and Venue Act, 28 U.S.C. § 1361, the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., the Due Process Clause of the Fifth Amendment, and the general federal question statute, 28 U.S.C. § 1331(a). (Compl. at 3). Whatever the merits of these suggested bases of jurisdiction may have been before the Attorney General initiated removal proceedings, the jurisdiction-stripping provisions of 8 U.S.C. § 1252(g) ("Section 1252(g)") now deprive this Court of subject matter jurisdiction over the Plaintiffs' claims.

A. Applicable Law

1. Statutory Scheme

Under Section 245 of the Immigration and Nationality Act ("INA"), an alien who has been "inspected and admitted or paroled into the United States," may petition the Attorney General to have her immigration status adjusted to that of an "alien lawfully admitted for permanent residence." 8 U.S.C. § 1255(a). When removal proceedings are not pending against the alien, the USCIS "has jurisdiction to adjudicate an application for adjustment of status;" further, although "no appeal lies from the denial of an application by [the USCIS]," the alien "retains the right to renew his or her application." 8 C.F.R. §§ 245.2(a)(1), (a)(5)(h).

The situation differs markedly once the Attorney General has commenced removal proceedings. In that circumstance, absent a discretionary remand to the USCIS, the alien's right to remain in the United States must be determined by an IJ. 8 U.S.C. § 1229a(a)(1). Moreover, "the [IJ] hearing the proceeding has exclusive jurisdiction to adjudicate any...