Malik v. Meissner, No. 1153

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtWINTER
Citation82 F.3d 560
PartiesMohammed Abdul MALIK, Plaintiff-Appellant, v. Doris MEISSNER, Commissioner, Immigration and Naturalization Service and Immigration and Naturalization Service, Defendants-Appellees. ocket 95-6179.
Decision Date02 May 1996
Docket NumberNo. 1153,D

Page 560

82 F.3d 560
Mohammed Abdul MALIK, Plaintiff-Appellant,
v.
Doris MEISSNER, Commissioner, Immigration and Naturalization
Service and Immigration and Naturalization
Service, Defendants-Appellees.
No. 1153, Docket 95-6179.
United States Court of Appeals,
Second Circuit.
Argued March 1, 1996.
Decided May 2, 1996.

Page 561

Appeal from a judgment of the United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge ) dismissing appellant's complaint for lack of subject matter jurisdiction. We affirm the district court's ruling that review of the INS's denial of the Special Agricultural Worker status to Malik is barred by statute.

Charles A. Grutman, New York City, for Plaintiff-Appellant.

Diogenes P. Kekatos, Assistant United States Attorney, Southern District of New York, New York City (Mary Jo White, United States Attorney, James A. O'Brien III, F. James Loprest, Jr., Special Assistant United States Attorneys, Steven M. Haber, Assistant United States Attorney, of counsel), for Defendants-Appellees.

Before: VAN GRAAFEILAND, MESKILL, and WINTER, Circuit Judges.

WINTER, Circuit Judge:

Mohammed Abdul Malik appeals from Judge Scheindlin's dismissal of his amended complaint. Malik sought a declaratory judgment that defendants Doris Meissner, Commissioner of the Immigration and Naturalization Service ("INS"), and the INS had unlawfully declined to reopen his disapproved application for temporary resident status as a Special Agricultural Worker ("SAW") pursuant to 8 U.S.C. § 1160(b)(1), (2) & (4). Malik also sought a writ of mandamus or mandatory injunction compelling the INS to reopen and reconsider his SAW application. Judge Scheindlin dismissed the complaint for lack of subject matter jurisdiction. Malik argues that under McNary v. Haitian Refugee Ctr., 498 U.S. 479, 492, 111 S.Ct. 888, 896, 112 L.Ed.2d 1005 (1991), the district court had jurisdiction to review his challenge to the procedures employed by the INS. Because McNary recognized an exception to the statutory jurisdictional bar only where a plaintiff brings a general collateral challenge to allegedly unconstitutional practices and because Malik challenges

Page 562

only the INS's denial of his individual SAW application, we affirm.

Malik, a native and citizen of Bangladesh, illegally entered the United States at Miami, Florida on August 6, 1985. Pursuant to the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1160(b)(1), (2) & (4), Malik applied on July 8, 1988 for temporary residence as a Special Agricultural Worker. See 8 U.S.C. § 1160(b)(3)(B) & 1160(a)(1)(B)(ii) (requiring applicant for SAW status to submit documentation that he or she performed at least ninety man-days of...

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321 practice notes
  • Praileau v. Fischer, No. 1:12–CV–1261 (GTS/RFT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • March 8, 2013
    ...the burden of proving subject-matter jurisdiction by a preponderance of the evidence. Makarova, 201 F.3d at 113 (citing Malik v. Meissner, 82 F.3d 560, 562 [2d Cir.1996] ).E. Standard Governing Dismissal for Failure to State a Claim It has long been understood that a dismissal for failure t......
  • Westmoreland Capital Corp. v. Findlay, No. 973
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 7, 1996
    ...de novo. See Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 751 (2d Cir.1996); Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996). The district court properly considered, sua sponte, the lack of subject matter jurisdiction over the petition. Although the respond......
  • U.S. ex rel. Smith v. Yale University, No. 3:00CV1359 (PCD).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • February 14, 2006
    ...as the party asserting subject matter jurisdiction, has the burden of establishing that it exists in this case, Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996), and the court should not draw argumentative inferences in his favor. Atlantic Mutual Ins. Co. v. Balfour Maclaine Int'l, 968 F.2......
  • Bish v. Aquarion Services Co., No. 3:03CV1118 (JBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • October 14, 2003
    ...has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists. See id. (citing Malik v. Meissner, 82 F.3d 560, 562 (2d III. Discussion A. Aquarion's Motion to Dismiss Aquarion contends that it is not liable under either ERISA or the LMRA for any allege......
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322 cases
  • Bish v. Aquarion Services Co., No. 3:03CV1118 (JBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • October 14, 2003
    ...has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists. See id. (citing Malik v. Meissner, 82 F.3d 560, 562 (2d III. Discussion A. Aquarion's Motion to Dismiss Aquarion contends that it is not liable under either ERISA or the LMRA for any allege......
  • Wiltzius v. Town of New Milford, Civil Action No. 3:05-CV-661(JCH).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • September 18, 2006
    ...of the evidence that the court has subject matter jurisdiction over the complaint. Makarova, 201 F.3d at 113; see also Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996); In re Joint E. & So. Dist. Asbestos Litig., 14 F.3d 726, 730 (2d Cir.1993). Courts evaluating Rule 12(b)(1) motions "may ......
  • Quinoy v. Catherine Pena & the United States, 13-cv-1945 (NSR)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 14, 2014
    ...bears the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists." Id. (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996)). When "the case is at thePage 7pleading stage and no evidentiary hearings have been held ... [a court] must accept as true......
  • Aron v. Becker, 3:13-CV-0883
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • September 22, 2014
    ...by a preponderance of the evidence that it exists. See Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002); see also Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996). B. Rule 12(b)(6) In reviewing the sufficiency of a complaint under Rule 12(b)(6), the Court "must accept as true all of the ......
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