Mehanna v. Dedvukaj
| Decision Date | 30 November 2010 |
| Docket Number | Case No. 09-14510 |
| Parties | NOURELAIN MEHANNA, REDA BARAKAT,Plaintiffs, v. MICK DEDVUKAJ, et al, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
This matter is before the Court on Defendants' Motion to Dismiss or, Alternatively, for Summary Judgment. (Doc. 15).
Defendants' motion is GRANTED.
On December 10, 2009, Nourelain Mehanna and Reda Barakat filed suit asking the Court to declare that Barakat's I-130 relative visa petition ("petition"), filed on his behalf by his mother, Mehanna, is valid. Mehanna, a citizen of Lebanon and a lawful permanent resident of the U.S., filed the petition on her son's behalf on April 13, 2000. Mehanna classified Barakat as an unmarried, adult child of a permanent resident, and the U.S. Citizenship & Immigration Service (USCIS) approved the petition on November 15, 2001.
On December 25, 2006, Barakat married a U.S. citizen. Because of his marriage, Barakat was admitted to the U.S. as a conditional permanent resident on August 9, 2007. Barakat's marriage was annulled on June 12, 2008. Barakat then received notification that Detroit's USCIS intended to terminate his conditional residency.
Barakat responded to the notice, and admitted that his marriage was annulled. He also filed an application for adjustment of status based on the petition previously filed by Mehanna.
The USCIS terminated Barakat's conditional permanent residency on April 30, 2009. The USCIS also denied Barakat's request for adjustment of status for an unmarried, adult child of a permanent resident, stating the petition was automatically revoked when Barakat got married. On August 13, 2009, Barakat received a notice to appear, which informed him that the Department of Homeland Security (DHS) had initiated removal proceedings against him.
Barakat asks the Court to declare his I-130 petition valid because, under Michigan law, an annulment voids a marriage ab initio (from the beginning). Barakat believes the USCIS should treat him as though he never married because annulments cancel the marriage as though it never existed, removing the reason for the revocation.
Defendants bring their motion under Fed. R. Civ. P. 12(b)(1), claiming that the Court lacks subject matter jurisdiction to review this matter. To defeat a motion to dismiss for lack of subject matter jurisdiction, "the plaintiff must show that the complaint 'alleges a claim under federal law, and that the claim is substantial.'" Mich. S. R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass'n, Inc., 287 F.3d 568, 573 (6th Cir. 2002) (quoting Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1248 (6th Cir. 1996)). The plaintiff "will survive the motion to dismiss by showing 'any arguable basis in law' for the claims set forth in the complaint." Id. (quoting Musson, 89 F.3d at 1248). Where federal question jurisdiction is alleged, the federal question must be presented on the face of the complaint. See Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998).
If the attack on jurisdiction is a facial attack on the complaint, the court must accept the allegations in the complaint as true and construe them in a light most favorable to the non-moving party. United States v. A.D. Roe Co., Inc., 186 F.3d 717, 721-722 (6th Cir 1999). If the attack is factual, however, the court may weigh evidence and resolve factual disputes. Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). "[A] trial court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts." Id.
Defendants argue the Court has no subject matter jurisdiction over this claim, and that it must be dismissed pursuant to Fed. R. Civ. P. 12(b)(1).
In the Complaint, Plaintiffs allege jurisdiction based on the Declaratory Judgment Act (the "Act"), 28 U.S.C. § 2201. However, the Act does not confer an independent source of federal subject matter jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950); Schilling v. Rogers, 363 U.S. 666, 677 (1960); Heydon v. MediaOne of Southeast Michigan, Inc., 327 F.3d 466, 470 (6th Cir. 2003). It is well established that "[a] plaintiff cannot circumvent the well-pleaded complaint rule by seeking a declaratory judgment... if the complaint itself would not otherwise state a federal question." Heydon, 327 F.3d at 470. Therefore, a court must already have a source of jurisdiction before it can rely on the Act to grant a remedy. Id.
In Plaintiffs' response to the motion to dismiss, they allege two additional sources of jurisdiction: (1) the Administrative Procedure Act (APA), 5 U.S.C. § 702; and (2) the Federal Question jurisdiction statute, 28 U.S.C. § 1331. Like the Act, the APA is not an independent source of jurisdiction of the federal courts. Califano v. Sanders, 430 U.S. 99, 105-107 (1977). However, generally, "[j]urisdiction to review agency action under the APA is found in 28 U.S.C. § 1331." Chrysler Corp. v. Brown, 441 U.S. 281, 317 n. 47 (1979); see also Hamdi ex rel Hamdi v. Napolitano, 620 F.3d 615, 624 (6th Cir. 2010). Thus, the APA and § 1331, if alleged in the Complaint, would ordinarily give this Court subject matter jurisdiction to review the Plaintiffs' action. While a response to a motion is not the proper place to assert jurisdiction, Plaintiffs' claim is doomed even if the Court accepts Plaintiffs' response to the motion as a proper amendment of the Complaint.
Under Section 1154 of the Immigration and Nationality Act (INA), a lawful permanent resident may petition the Attorney General for a visa for an unmarried, adult child. 8 U.S.C. § 1154(a)(B)(i)(I). Once approved, the Secretary of Homeland Security (Secretary) may revoke the petition under § 1155, which states:
The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 1154 of this title. Such revocation shall be effective as of the date of approval of any such petition.
Although § 1154 specifically refers to the Attorney General, while § 1155 specifically refers to the Secretary of Homeland Security, the Homeland Security Act of 2002 instructs that "all statutory references to the Attorney General in immigration statutes are construed as referencing the appropriate DHS official." Hamdi, 620 F.3d at 621 n. 4.
The DHS enacted federal regulations, including 8 C.F.R. § 205, to implement the revocation power authorized in § 1155. This regulation provides for automatic revocations, see 8 C.F.R. § 205.1, and revocations on notice, see id. at § 205.2. According to 8 C.F.R. § 205.1(a)(3)(i)(I), "the approval of a petition... is revoked... upon the marriage of a person accorded status as a son or daughter of a lawful permanent resident alien under section 203(a)(2) of the Act." This is the regulation under which Barakat's petition was revoked.
Plaintiffs claim that Barakat's petition was improperly revoked because his marriage must be treated as though it never existed. Defendants say that the Court has no jurisdiction to review the revocation because Congress stripped federal courts of jurisdiction to review discretionary decisions of the Secretary. Defendants are correct.
Under 8 U.S.C. § 1252(a)(2)(B)(ii), decisions committed to the discretion of the Secretary are not subject to judicial review. Title 8 U.S.C. § 1252(a)(2)(B) states:
Notwithstanding any other provision of law (statutory or nonstatutory),... and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review... any... decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title. The subchapter referenced in this statute is entitled "Immigration," and includes 8 U.S.C. §§ 1151-1381. Kucana v. Holder, 130 S. Ct. 827, 832 n.3 (2010). The statute under which Barakat's petition was revoked is within this subchapter. Therefore, to decide whether the Court has subject matter jurisdiction, it must decide whether the revocation of Barakat's petition is a decision within the discretion of the Secretary.
Defendants rely on the statute which authorizes the Secretary to revoke petitions, 8 U.S.C. § 1155. Defendants say that this statute specifies that the decision to revoke is within the discretion of the Secretary.
Plaintiffs rely on the regulation under which Barakat's petition was automatically revoked, 8 C.F.R. § 205.1(a)(3)(i)(I). Plaintiffs say that the regulation is not discretionary because it calls for an automatic revocation; therefore, it does not fall within the jurisdiction stripping statute of § 1252.
Plaintiffs reliance on the regulation is misguided; the regulation under which Barakat's petition was revoked was promulgated to implement 8 U.S.C. § 1155.
Eight U.S.C. § 1155 provides:
The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 1154 of this title. Such revocation shall be effective as of the date of approval of any such petition.
To implement this statutory revocation power, the Secretary enacted 8 C.F.R. § 205. See Lockhart v. Napolitano, 573 F.3d 251, 261 (6th Cir. 2009) (); Pierre v. U.S. Attorney...
To continue reading
Request your trial