MUSTAFA et al v. THOMPSON et al
MEMORANDUM OPINION & ORDER granting deft's 7 Motion to Dismiss; within 30 days from the entry of this order, pltfs. shall show case as to why their immigration and Nationality Act challenges should not be dismissed for lack of jurisdiction; administratively terminating this matter; dismissing 12 Motion seeking leave to amend complt., ***CASE TERMINATED.. Signed by Judge Claire C. Cecchi on 2/28/2013. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SOHAIL MUSTAFA et al.,
Civil Action No. 12-253 8 (CCC)
MEMORANDUM OPINION & ORDER
JOHN THOMPSON et al.,
This matter comes before the Court upon Defendants’ motion seeking dismissal of
Plaintiffs’ complaint and Plaintiffs’ motion seeking leave to amend their pleading, and it
Plaintiff Sohail Mustafa (“Mustafa”) is a Pakistani native who entered the U.S. in May
1996 by means of a temporary visa allowing him to remain in this country until midAugust 1996. Mustafa did not leave the U.S. at the expiration of that visa and remained
in this country (either without any authorization or on the basis of an authorization the
nature of which is not immediately apparent from the record) until September 2002, when
he married Sultana Rizvi (“Rizvi”), a lawful permanent resident and 1ustafa’s co
plaintiff in this matter, Upon and due to marrying Rizvi, Mustafa obtained an
authorization to remain in the U.S. until September 2004. In order to remain in this
country after September 2004, Vustafa had to adjust his immiation status.
Mustafa filed an application seeking a green card to become a U.S. lawful permanent
resident. Processing Mustafa’s application, the U.S. Citizenship and Immigration
Services (“CIS”) detected that the application was deficient in a certain way. and directed
Mustafa to provide additional information. Mustafa, however, failed to comply with that
request and, therefore, his green card application was denied.’
th May 2006, Mustafa filed another application with the CIS. That new application
sought an “extreme hardship waiver” which, if granted, would have allowed Mustafa to
become a permanent resident regardless of the aforesaid deficiency found in his green
card application. The CIS, however, denied Mustafa’s application for a waiver, thereby
rendering him a removable alien, and he was served with a Notice to Appear in a removal
proceeding instituted against him.
Currently, Mustafa is in the midst of this immigration/removal proceeding. There is no
dispute that Mustafa is entitled to request an “extreme hardship waiver” determination
from the immigration judge (“IJ”) presiding over that proceeding. It is also undisputed
that, in the event the IJ denies Mustafa’ s application for a waiver, Mustafa may appeal
said denial administratively to the Board of Immigration Appeals (“BIA”) and, if his
order of removal finalizes, he may seek review from the United States Court of Appeals
for the Third Circuit: raising, inter alia, the very same waiver challenge. However, either
anxious to speed this process up or perhaps concerned with the possibility of an
It appears that the CIS’s request for additional information resulted from the agency’s
detection of the fact that ustafa entered the U.S. by using a fraudulent Belgian passport.
Although Plaintiffs’ complaint did not clarify the issue at the heart of the CIS determination, the
docket as read j toto suggests that Plaintiffs seemingly do not dispute this fact.
The Notice clarified that Mustafa was removable because of his use of the fraudulent
Belgian passport upon his entry into the U.S. and for remaining in this country without a valid
authorization after September 2004, that is, from the point in time when his initial authorization
to be present in the U.S. due to his marriage to Rizvi expired.
unfavorable outcome of Mustafa’ s endeavors before the 13, BIA and the Court of
Appeals, Plaintiffs commenced the instant matter raising Mustafa’s challenges as to the
CIS’s denial of waiver before this Court. To that end, Plaintiffs filed a civil complaint:
(a) alleging that the CIS violated both the Immigration and Nationality and
Administrative Procedure Acts by denying Mustafa’s request for a waiver; and (b) relying
on the federal-question provision, § 1331, as well as on the mandamus statute and on 28
U.S.C. § 1337, the provision bestowing jurisdiction upon the district courts to hear civil
matters arising under the statutes regulating commerce or trade. $,,ç Docket Entry No. 1.
Defendants moved for dismissal of Plaintiffs’ complaint on jurisdictional grounds as well
as failure to state a claim upon which relief can be granted, pursuant to Rule 12. $,
Docket Entry No. 7. Defendants’ motion states that (a) this Court is without jurisdiction
to review the CIS ‘s discretionary decisions regarding denial of waiver; (b) Plaintiffs’
reliance on Section 1331 as an independent basis, not linked to any violation of a federal
right, is a legal error; and (c) Plaintiffs’ reliance on Section 1337 or on the mandamus
statute, or on the Administrative Procedure Act (“APA”) is misplaced. $ç
In response to Defendants’ Rule 12 motion, Plaintiffs filed an application seeking to
amend their pleading. $,ç Docket Entry No. 12. That application requested leave to
“narrow the issues” to the question of whether the CIS’s “interpretation” of the waiver
provision was correct. Plaintiffs contend that this Court’s ruling on that issue would
alleviate the burden faced by Mustafa’s 13, who would, thus, be spared from the complex
task of performing such “interpretation.” See id.
Defendants opposed Plaintiffs’ motion to amend by pointing out that this Court’s lack of
jurisdiction cannot be cured by Plaintiffs’ paraphrasing of their claims.
$ Docket Entry
No. 14, Therefore, Defendants urged this Court to deny Plaintiffs’ application for leave
to amend, as futile, See id. In response, Plaintiffs filed opposition to Defendants’ Rule
12 motion to dismiss, effectively rewording Plaintiffs’ motion to amend.
Entry No. 23.
To the extent Defendants move this Court for dismissal of Plaintiffs’ challenges based on
Section 1331, asserted independently, Defendants’ motion will be granted. Plaintiffs
cannot invoke this Court’s jurisdiction by asserting that they have a federal question;
rather they must assert a cognizable, viable, and fact-supported violation of their federal
rights in order to form the federal question they could litigate.
To the extent Defendants move this Court for dismissal of Plaintiffs’ challenges on the
grounds of facial inapplicability of the APA (or of the mandamus statute, or of Section
1337) to the circumstances at bar, Defendants’ motion will be granted. No allegation
raised in Plaintiffs’ complaint (or in their application to amend their pleading) offers this
Court a nexus between these legal provisions and the facts at hand.
Defendants’ submissions suggest their position that Plaintiffs’ APA and mandamus
challenges, in addition to being deficient on merits, are procedurally moot, While the distinction
is largely academic, the Court notes that Plaintiffs’ APA and mandamus challenges are
differently positioned procedurally, since the APA challenges to the CIS’s administrative actions
were mooted, while the mandamus challenges never even ripened due to the lack of a ministerial
task the CIS had but failed to perform with regard to Mustafa. “Simply stated, a case is moot
when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in
the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631(1979) (quoting Powell v.
McCormack, 395 U.S. 486, 496 (1969)). In contrast, the ripeness inquiry springs from the
Article III “case or controversy” requirement that prohibits courts from issuing advisory opinions
on speculative claims.
Regl Rail Reorganization Act Cases, 419 U.S. 102, 138 (1974).
The foregoing leaves the Court solely with Plaintiffs’ Immigration and Nationality Act
(“INA”) challenges: (a) maintaining that the CIS erred in its “interpretation” of the
provision; and (b) speculating that the IJ might err in performing that “interpretation.”
These challenges are facially deficient. Being an Article III tribunal, this Court cannot
enter any advisory opinions; that
in and by itself— renders Plaintiffs’ speculation-based
claim invalid. Furthermore, Plaintiffs do not seek a purely legal interpretation of the
waiver provision, since they do not challenge the provision as drafied; rather, they
challenge it as applied, hence attacking the CIS ‘s determination.
The Supreme Court noted, in Kucana v. Holder, 558 U.S. 233 (2010), as follows:
Focusing on § 1252(a)(2)(B), we note the lead line serving to introduce
both of the subparagraph’s two clauses: “[N]o court shall have jurisdiction
Clause (i) then places within the no-judicial-review
category “any judgment regarding the granting of relief under section
1182(h) [and] 1182(i).
Each of the statutory provisions referenced in
clause (i) addresses a different form of discretionary relief from removal,.
and each contains language indicating that the decision is entrusted to
the Attorney General’s discretion.
g, § 1182(h) (“The Attorney
General may, in his discretion, waive [inadmissibility based on certain
criminal offenses]”). Clause (i) does not refer to any regulatory provision
[and it] enumerat[es the] administrative judgments that are insulated from
Id. at_, 130 5. Ct. 827, 836; see j] Bedoya-Melendez v. United States AG, 699 F,3d
1270, 1272 (11th Cir. 2012) (“For example, under the hardship waivers of 8 U.S.C.
1182(h) and 8 U.S.C.
§ 1182(i), Congress has explicitly and separately specified that each
Moreover, this Court cannot provide the IJ with
guidance even on a non
speculative issue trusted for the IJ’s resolution. This is because district courts lack appellate
jurisdiction over the decisions rendered by immigration judges. That jurisdiction, albeit curtailed
in certain respects, is vested exclusively in the BIA, the circuit courts and the Supreme Court of
the United States.
of the underlying statutory eligibility criteria must be ‘established to the satisfaction of the
Plaintiffs’ preemptive attack on what might transpire cannot be squared either with the
express bar on judicial review set forth in
1252 or with the overall jurisdiction-stripping
gist of the REAL ID Act. Therefore, Defendants’ motion seeking dismissal of Plaintiffs’
INA challenges on these grounds is well merited, and Defendants’ position that Plaintiffs’
amendment of their pleading cannot cure this threshold deficiency is correct. However,
considering the complexity of Plaintiffs’ pleading and the obscurity of their following
submissions, this Court cannot rule out the possibility that Plaintiffs’ INA challenges are
qualitatively different from those distilled by this Court and duly noted by Defendants.
Therefore, out of abundance of caution, the Court finds it warranted to allow Plaintiffs an
opportunity to show cause as to why their INA challenges should not be dismissed for lack
ofjurisdiction on the grounds detailed herein.
IT IS, therefore, on this
ORDERED that Defendants’ motion, Docket Entry No. 7, is granted insofar as
Defendants challenged: (a) Plaintiffs’ reliance on
1331 as an independent basis, not dependent
on a specific federal right; and (b) Plaintiffs’ reliance on Sections 1361 and 1337, as well as on
the Administrative Procedure Act, 5 U.S.C.
as sources ofjurisdiction asserted
The REAL ID Act of 2005, Pub. U No. 109-13, 119 Stat. 231 (May 11, 2005) stripped
the district court ofjurisdiction to review petitioner’s challenges to the immigration orders. It is
self-evident that ustafa, if denied waiver by his Ii and having that determination affirmed by
the BIA, might indeed exercise his right to petition the Court of Appeals for review under 8
U.S.C. § l252(a)(2)(D).
without a showing of relevance to these facts. Therefore, Plaintiffs’ complaint, Docket Entry No.
1, is dismissed with prejudice as to these claims; and it is further
ORDERED that, within thirty days from the date of entry of this Memorandum Opinion
and Order, Plaintiffs shall show cause as to why their Immigration and Nationality Act challenges
should not be dismissed for lack ofjurisdiction in light of the language of Sections 1252, 1182(h)
and (i), the letter and spirit of the REAL ID Act, and the Supreme Court and Court of Appeals
relevant precedent; and it is further
ORDERED that the Clerk shall administratively terminate this matter by making a new
and separate entry on the docket reading, “CIVIL CASE TERMINATED.” The Court stresses
that an administrative termination is not a final dismissal on the merits, and the Court retains its
jurisdiction over this matter; and it is further
ORDERED that, in the event Plaintiffs fail to file a written statement showing cause in
accordance with the terms of this Memorandum Opinion and Order, Plaintiffs’ Immigration and
Nationality Act challenges will be deemed withdrawn without further notice; and it is further
ORDERED that, in the event Plaintiffs file a written statement aiming to show cause in
accordance with the terms of this Memorandum Opinion and Order, Plaintiffs must serve their
Defendants, Defendants may file a response to Plaintiffs’ statement within
thirty days from the date of being served. Plaintiffs may reply to Defendants’ response, affecting
their reply within fifteen days of being served with Defendants’ response; and it is
ORDERED that Plaintiffs’ motion, Docket Entry No, 12, seeking leave to amend
Plaintiffs’ pleading is dismissed
this juncture; and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion and Order upon the
parties by means of electronic delivery.
Claire C. Cecchi,
United States District Judge