Shimisany v. Thompson
| Decision Date | 10 February 2017 |
| Docket Number | Civil No. 16-1755 (RBK/JS) |
| Parties | MOUSSA SHIMISANY, Plaintiff, v. JOHN E. THOMPSON; et al. Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
This matter comes before the Court on Defendants John E. Thompson, Leon Rodriguez, Jeh Johnson, Loretta Lynch, and James Comey1 (collectively, "Defendants")'s Motion to Dismiss (Doc. No. 8). In his First Amended Complaint, Plaintiff Moussa Shimisany ("Plaintiff") asserts a claim for mandamus against Defendants for their allegedly unlawful denial of several immigration applications. Lori Scialabba (Acting Director, U.S. Citizenship and Immigration Services), John F. Kelly (Secretary, Department of Homeland Security), and Jeff Sessions (Attorney General of the United States), are hereby substituted for Defendants Rodriguez, Johnson, and Lynch. For the reasons stated herein, Defendants' Motions to Dismiss is GRANTED.
This suit concerns circumstances surrounding Plaintiff's immigration status. Plaintiff alleges that he first entered the United States as a business visitor on April 14, 2011. First Amended Complaint ("FAC") ¶ 15 (Doc. No. 7). Plaintiff alleges that he has never been charged or convicted of an offense in the United States or elsewhere, nor has he ever been unlawfully present in the United States. Id. ¶¶ 16-18.
Plaintiff is a national of Lebanon domiciled in Voorhees, New Jersey. Id. ¶ 9. Plaintiff was married from June 1, 1998 to May 30, 2001 to Renate Stracke, a German citizen. Id. ¶ 19. Plaintiff then married Tina Chaalan (a United States citizen) in 2011. Ms. Chaalan subsequently filed a Petition for Alien Relative ("I-130") along with Plaintiff's Application for Adjustment of Status ("I-485"). Id. ¶ 20. Plaintiff and Chaalan divorced on or about June 23, 2014, before the I-130 and I-145 were processed. Id. Plaintiff married Farah Haidar (a United States citizen) on or about July 14, 2014. Id. ¶ 21. Haidar filed a new I-130 on behalf of Plaintiff and Plaintiff filed a new I-485 on or about August 6, 2014. Id. ¶ 22. Plaintiff applied for an I-131 to travel outside of the United States, which was approved by the United States Customs and Immigration Service ("USCIS") on or about March 20, 2015. Id. ¶ 23. The I-131 allowed Plaintiff to travel outside of the United States for the period between March 20, 2015 and March 19, 2016. Id. ¶ 24.
Plaintiff alleges that Defendants are required to process background checks of applicants for adjustment within six months of their application; the applicant may demand mandamus relief in district court if their check is not completed within six months. Id. ¶¶ 29-30. Plaintiff's immigration counsel allegedly performed an "Infopass" regarding Plaintiff's August 6, 2014application on March 19, 2015 and again on July 23, 2015. Id. ¶ 32. Counsel was informed that the delay was related to background checks. Id. Counsel e-mailed a Supervisory Immigration Services Officer ("SO") at the Mount Laurel Sub-District Office on September 30, 2015 to follow up. Id. ¶ 33. The SO allegedly confirmed that Plaintiff's security checks were pending and advised counsel that Plaintiff would be interviewed once the background checks were completed. Id.
Plaintiff's immigration counsel contacted the SO in Mount Lauren again on January 26, 2016. Id. ¶ 34. The SO responded on February 2, 2016, stating that the office was still attempting to resolve background check issues. Id. The SO also allegedly informed counsel that Plaintiff's case was with the Fraud Detection and National Security Unit. Id.
Plaintiff's immigration counsel spoke with the SO in Mount Laurel in person on February 25, 2016. Id. ¶ 35. The SO purportedly indicated that the best way to get Plaintiff's case moving would be to file a mandamus action. Id.
Plaintiff's I-130 and I-485 were denied on March 4, 2016. Id. ¶ 36. Defendants denied these applications without first scheduling an interview with Plaintiff. Id. Defendants then revoked Plaintiff's I-131 on March 7, 2016. Id. ¶ 37. Defendants allegedly explained that Plaintiff's applications and documents were denied/revoked because they never received proof of Plaintiff's divorce to Stracke. Id. ¶ 38.
Plaintiff left the United States on February 27, 2016 on Advance Parole to attend to his mother in Lebanon. Id. ¶ 26. Plaintiff attempted to reenter the United States on March 10, 2016, but was denied reentry at John F. Kennedy Airport. Id. ¶¶ 27, 43. The USCIS allegedly demanded that Plaintiff agree to an order of expedited removal before being allowed to depart the United States Id. ¶ 44. Plaintiff refused. Id. Plaintiff's counsel and wife went to the MountLaurel USCIS Office while he was at the airport to have the Field Office Director reopen the denied applications. Id. ¶ 46. The Field Office Director allegedly explained that the applications were denied under regulations that were inapplicable to Plaintiff. Id. ¶¶ 47-48. Plaintiff is now abroad and unable to be with his wife and two children. Id. ¶¶ 25, 28.
Plaintiff filed his original complaint on March 30, 2016. Plaintiff filed an amended complaint requesting mandamus relief pursuant to 28 U.S.C. § 1361 on June 13, 2016. Plaintiff's amended complaint requests that the Court order the USCIS to reinstate Plaintiff's I-131, reopen his I-130 and I-485, and allow Plaintiff to reenter the United States. Id. ¶ 69. Defendants submitted the instant motion to dismiss for lack of jurisdiction/motion to dismiss for failure to state a claim on June 27, 2016.
Where a defendant moves to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction, the plaintiff generally bears the burden of proving by a preponderance of the evidence that the Court has subject-matter jurisdiction. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). A district court has subject-matter jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332; "federal question" jurisdiction under 28 U.S.C. § 1331; or jurisdiction supplemental to the original claim under 28 U.S.C. § 1367.
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an action for failure to state a claim upon which relief can be granted. When evaluating a motion to dismiss, "courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips, 515 F.3d at 233)). In other words, a complaint is sufficient if it containsenough factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). It is not for courts to decide at this point whether the moving party will succeed on the merits, but "whether they should be afforded an opportunity to offer evidence in support of their claims." In re Rockefeller Ctr. Props., Inc., 311 F.3d 198, 215 (3d Cir. 2002). Yet, while "detailed factual allegations" are unnecessary, a "plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration in original) (citations omitted).
To make this determination, a court conducts a three-part analysis. Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Id. (quoting Iqbal, 556 U.S. at 675). Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. (quoting Iqbal, 556 U.S. at 680). Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Id. (quoting Iqbal, 556 U.S. at 680). This plausibility determination is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. A complaint cannot survive where a court can infer only that a claim is merely possible rather than plausible. Id.
The Plaintiff invokes 28 U.S.C. § 1361 (mandamus actions) as well as the Administrative Procedures Act (5 U.S.C. § 701 et seq.). The Court will discuss issues in the order Plaintiff raises them in his prayer for relief.
Plaintiff's complaint requests that the Court order the USCIS to reinstate his I-131 to allow him to reenter the United States pursuant to 28 U.S.C. § 1361. FAC ¶ 69. Defendants persuasively argue that this Court lacks subject-matter jurisdiction to review their decision to revoke this visa under the Immigration and Nationality Act. Defs.' Br. at 14-18 (Doc. No. 8-1).
Defendants cite the Immigration and Nationality Act ("INA") and case law to support this argument. The INA states that:
8 U.S.C. § 1252(a)(2)(B)(ii). "[T]his...
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