Nigmadzhanov v. Mueller

• Citation: 550 F.Supp.2d 540
• Decision Date: 01 May 2008
• Docket Number: No. 07 Civ. 1279(CM).,07 Civ. 1279(CM).
• Parties: Azat NIGMADZHANOV and Maryam Ibragimova, Plaintiffs, v. Robert S. MUELLER, Director, Federal Bureau of Investigation; Alberto Gonzales, Attorney General of the United States; Michael Chertoff, Secretary, the United States Department of Homeland Security; Emilio T. Gonzales, Director of the United States Citizenship and Immigration Services; Andrea J. Quarantillo, District Director, USCIS New York Field Office, Defendants.
• Court: U.S. District Court — Southern District of New York

550 F.Supp.2d 540

Azat NIGMADZHANOV and Maryam Ibragimova, Plaintiffs, v. Robert S. MUELLER, Director, Federal Bureau of Investigation; Alberto Gonzales, Attorney General of the United States; Michael Chertoff, Secretary, the United States Department of Homeland Security; Emilio T. Gonzales, Director of the United States Citizenship and Immigration Services; Andrea J. Quarantillo, District Director, USCIS New York Field Office, Defendants.

No. 07 Civ. 1279(CM).

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

May 1, 2008.

Alexander V. Bibicheff, Brooklyn, NY, for Plaintiffs.

James Loprest, U.S. Attorney's Office, New York, NY, for Defendants.

DECISION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS

McMAHON, District Judge.

I. Introduction

This case presents an issue that has divided district courts across the country, and remains open in the Second Circuit: does a district court have jurisdiction to hear a claim against CIS for its failure to adjudicate an application for adjustment of status under Section 245 of the Immigration and Naturalization Act?

This court is persuaded by those cases that hold that a district court does have jurisdiction. Because Plaintiffs claim is not patently without merit, Defendants' motion to dismiss is DENIED.

II. Background

Plaintiff Azat Nigmadzhanov, a United States citizen, and Plaintiff Maryam Ibragimova, a citizen of Uzbekistan, were married on October 16, 2001. Pl.'s Opp. at 2. Weeks later, Nigmadzhanov filed a form 130 to classify his wife, Ibragimova, as an "immediate relative" pursuant to 8 U.S.C. § 1154(a)(1)(A)(i). Id. As an immediate relative, Ibragimova became eligible to apply for permanent residence. Thus, at the same time Nigmadzhanov filed his 1-130, Ibragimova submitted an I-485 application to the United States Citizenship and Immigration Services (CIS) to adjust her status to "lawful permanent resident," on the basis of her status as an immediate relative of a U.S. citizen. Id.

Section 245 of the Immigration and Nationality Act, codified at 8 U.S.C. § 1255 — under which Ibragimova filed her form 1-485 application for adjustment of her status — provides, in pertinent part, that:

The status of an alien who was inspected and admitted or paroled into the United States or the status of any other alien having an approved petition for classification as a VAWA self-petitioner may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

28 U.S.C. § 1255(a). Part of the adjustment process is a mandatory name check by the FBI. The parties agree that the decision whether or not to grant (or to deny) an adjustment of status application is solely within the discretion of the Attorney General. Id. at 6.

Several years passed without CIS taking any action on Ibragimova's adjustment of status application. After several inquiries, Plaintiff learned that the delay was due to the FBI's failure to complete its mandatory background check. Id. at 2-3.

On February 16, 2007 — more than five years after she submitted her application — Ibragimova filed a complaint in this court, seeking an order compelling the FBI to complete Ibragimova's background check within 30 days, and compelling CIS to complete its adjudication of her application within 30 days of receiving the FBI's report. Id. at 3.

Defendants now ask this court to dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6). Defs.' Mem. at 2.

III. Discussion

A. Legal principles

Dismissal for lack of subject matter jurisdiction is proper where the district court lacks statutory or constitutional authority to decide the case. Fed.R.Civ.P. 12(b)(1); Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence. Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir.2002). In considering whether jurisdiction exists, the court must "accept as true all material factual allegations in the complaint." Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998) (internal citations omitted). However, jurisdiction is to be shown affirmatively and the court is to refrain from "drawing from the pleadings inferences favorable to the party asserting it." Id. (citing Norton v. Larney, 266 US. 511, 515, 45 S.Ct. 145, 69 L.Ed. 413 (1925)).

Defendant argues that there is no statutory or constitutional basis for subject matter jurisdiction over Plaintiffs claims. Plaintiff responds by pointing to the Administrative Procedure Act, in conjunction with the federal question statute, 28 U.S.C. § 1331, as well as the Mandamus and Venue Act, 28 U.S.C. § 1361.

1. Federal question statute, 28 U.S.C § 1331

The federal question statute confers jurisdiction on the district courts over actions "arising under" federal law. 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). "An action arises under a federal statute where the statute creates or is a necessary element of the cause of action or the plaintiff would prevail if the statute were construed one way and lose if it were construed another." Kim v. Ashcroft, 340 F.Supp.2d 384, 388 (quoting Cordoba v. McElroy, 78 F.Supp.2d 240, 243 (S.D.N.Y.2000)). This has been interpreted to mean that federal question jurisdiction exists where: "(1) the claim turns on an interpretation of the laws or Constitution of the United States and (2) the claim is not `patently without merit.'" Id. (citing Batista v. I.N.S., 2000 WL 204535, at *3 (S.D.N.Y. Feb.22, 2000)) (other citations and quotations omitted).

2. The Administrative Procedure Act

The APA alone does not confer jurisdiction on a district court to review the decision of an administrative agency, Califano v. Sanders, 430 U.S. 99, 106-07, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). However, "The APA in conjunction with the federal question statute, 28 U.S.C. § 1331, may provide a jurisdictional basis." Bondarenko v. Chertoff, 2007 WL 2693642, at *2 (citing Batista, 2000 WL 204535). Thus, "plaintiffs seeking specific relief are given the right to sue the government in a federal court by the [APA] but the subject matter jurisdiction basis is the federal question statute." Kim v. Ashcroft, 340 F.Supp.2d at 388 (citing 14A Charles Alan Wright, Arthur C. Miller & Edward H. Cooper, Federal Practice and Procedure § 3659, at 51 (3d ed.1998)). Thus, when a plaintiff alleges that the defendant violated the APA, the court may exercise subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

Here, the relevant provision of the APA is 5 U.S.C. § 555(b), which states, "With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it." (emphasis added).

3. Mandamus and Venue Act

Plaintiff also claims that the Mandamus and Venue Act confers jurisdiction. That Act empowers the federal courts to compel government officials to carry out "ministerial" duties. Work v. United States ex rel. Rives, 267 U.S. 175, 177, 45 S.Ct. 252, 69 L.Ed. 561 (1925). The court's power depends on the nature of the duty sought to be compelled: relief "will issue only to compel the performance of a `clear nondiscretionary duty.'" Pittston Coal Group v. Sebben, 488 U.S. 105, 121, 109 S.Ct. 414, 102 L.Ed.2d 408 (1988) (quoting Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984)).

One court recently summarized the elements of mandamus jurisdiction in the Second Circuit as follows:

Mandamus jurisdiction is "closely related to the merits of whether a writ of mandamus should issue." Ocuto Blacktop & Paving Co., Inc. v. Perry, 942 F.Supp. 783, 786 (N.D.N.Y.1996) (citations omitted). Three elements must exist to support a writ of mandamus: (1) a "`clear and indisputable'" right to the relief sought, In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir.1988) (quotation and other citations omitted); (2) "a plainly defined and peremptory duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available[,]" Lovallo v. Froehlke, 468 F.2d 340, 343 (2d Cir.1972) (citations omitted). Conversely, mandamus jurisdiction is inappropriate where there is no plainly defined clear nondiscretionary duty, see Anderson v. Bowen, 881 F.2d 1, 5 (2d Cir.1989) (citation omitted), or where there is no compelled duty owed to the plaintiff, see Leopold v. United States Civil Service Commission, 450 F.Supp. 154, 157 (E.D.N.Y.1978).

Anand v. U.S. National Sec. Agency, 2006 WL 3257430, at *5 (N.D.N.Y. Nov.9, 2006).

4. Jurisdictional bars

Aside from the question of whether either the APA or the Mandamus Act affirmatively provides this court with subject matter jurisdiction, there is the question of whether judicial review is explicitly barred.

Section § 1252(a)(2)(B) of the INA states, in relevant part, that no court has jurisdiction to review: "(i) any judgment regarding the granting of relief under [section 245] or (ii) any other 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...." 8 U.S.C. § 1252(a)(2)(B).

5. Relevant authority

The arguments about whether jurisdiction exists in the circumstances of this case have been made numerous times before district courts...