Bici v. Chertoff et al

Filing 15

ORDER: Motion to Dismiss (Doc. No. 12 ) is hereby GRANTED. The clerk shall close this case. It is so ordered. Signed by Judge Alvin W. Thompson on 02/28/12. (Atmeh, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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MEHMET BICI,
:
:
Plaintiff,
:
:
v.
: Civil No. 3:10CV1991 (AWT)
:
JANET NAPOLITANO, in her capacity
:
as the Secretary of the Department
:
of Homeland Security;
:
UNITED STATES CITIZENSHIP AND
:
IMMIGRATION SERVICES;
:
FRAN HOLMES, District Director
:
Buffalo District; and
:
ETHAN ENZER, Officer in Charge,
:
Hartford Sub-Office,
:
:
Defendants.
:
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RULING ON MOTION TO DISMISS
The plaintiff, Mehmet Bici, is a native and citizen of the former
Yugoslavia, now Kosovo, who resides in Greenwich, Connecticut. The
plaintiff’s complaint challenges a decision by the United States
Citizenship and Immigration Services (“USCIS”) denying the plaintiff
permission to reapply for admission to the United States after
deportation or removal under Section 212(a)(9)(A)(iii) of the
Immigration Nationality Act, 8 U.S.C.

§ 1182(a)(9)(A)(iii).

The

plaintiff claims the court has jurisdiction pursuant to 8 U.S.C.
§ 1329 (section 279 of the Immigration and Nationality Act (“INA”));
28 U.S.C. §§ 1331 and 1361 (federal question and the Mandamus Act);
and 5 U.S.C. § 702 (the Administrative Procedures Act (“APA”).
I.

Factual Background
On June 30, 2008, the plaintiff filed a Form I-212 application

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seeking to reapply for admission to the United States after
deportation or removal.

On June 1, 2009, the USCIS District Director

denied the I-212 application as a matter of discretion, concluding
that the unfavorable factors outweighed the favorable factors in the
plaintiff’s case.

Among the unfavorable facts cited by the USCIS are

the plaintiff’s: (a) conviction1 for criminal assault in Stamford,
Connecticut; (b) subsequent departure from the United States that was
possibly in violation of the terms of an accelerated pretrial
rehabilitation program under Conn. Gen. Stat. § 54-56e; (c) declining
to surrender for deportation; (d) self-deportation from the United
States on December 27, 2004; and (e) re-entry into the United States
on January 13, 2005.

After a review of the record and consideration

of the above five factors, among others, the USCIS Administrative
Appeals Office (“AAO”) denied the plaintiff’s appeal of the June 1,
2009 decision on October 18, 2010, relying on 8 U.S.C.
§ 1182(a)(9)(A)(iii).
The defendants move to dismiss this action for lack of subject
matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and failure to
state a claim under Fed. R. Civ. P. 12(b)(6).
II.

Legal Standard
“[T]he standards for reviewing dismissals granted under 12(b)(1)

and 12(b)(6) are identical.”
169 n.3 (2d Cir. 1999).

Moore v. PaineWebber Inc., 189 F.3d 165,

When deciding a motion to dismiss under Rule

1

The parties disagree as to whether the definition of the term
“conviction” under 8 U.S.C. 1101(a)(48)(A) includes a matter disposed of under
Connecticut’s accelerated pretrial rehabilitation program pursuant to Conn.
Gen. Stat. § 54-56e. However, that point is not material to the resolution of
this motion.

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12(b)(6), the court must accept as true all factual allegations in the
complaint and must draw inferences in a light most favorable to the
plaintiff.

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Although a

complaint “does not need detailed factual allegations, 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.”

Bell Atlantic

Corp. v. Twombly, 550 U.S. 550, 555 (2007), citing Papasan v. Allain,
478 U.S. 265, 286 (1986)(on a motion to dismiss, courts “are not bound
to accept as true a legal conclusion couched as a factual
allegation”).

“Nor does a complaint suffice if it tenders naked

assertions devoid of further factual enhancement.”

Ashcroft v. Iqbal,

129 S.Ct. 1937, 1949 (2009)(quoting Twombly, 550 U.S. at 557).
“Factual allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all allegations in the
complaint are true (even if doubtful in fact).”
omitted).

Id. (citations

However, the plaintiff must plead “only enough facts to

state a claim to relief that is plausible on its face.”

Id. at 1974.

“The function of a motion to dismiss is ‘merely to assess the legal
feasibility of the complaint, not to assay the weight of the evidence
which might be offered in support thereof.’”

Mytych v. May Dept.

Store Co., 34 F. Supp. 2d 130, 131 (D. Conn. 1999), quoting Ryder
Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774,
779 (2d Cir. 1984).

“The issue on a motion to dismiss is not whether

the plaintiff will prevail, but whether the plaintiff is entitled to
offer evidence to support his claims.”

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United States v. Yale New

Haven Hosp., 727 F. Supp. 784, 786 (D. Conn. 1990) (citing Scheuer,
416 U.S. at 232).
In its review of a motion to dismiss for failure to state a
claim, the court may consider “only the facts alleged in the
pleadings, documents attached as exhibits or incorporated by reference
in the pleadings and matters of which judicial notice may be taken.”
Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993).
III. Discussion
The REAL ID Act of 2005, 8 U.S.C. § 1252 (the “REAL ID Act”),
divests federal district courts of jurisdiction to review challenges
to removal orders.

Review of a removal order may only be sought in

the appropriate court of appeals. See De Ping Wang v. Dep't of
Homeland Sec., 484 F.3d 615, 617 (2d Cir. 2007); Marquez-Almanzar v.
INS, 418 F.3d 210, 215 (2d Cir. 2005).

“[S]ection 1252(a)(5) would

clearly preclude the district court’s entertaining of a direct
challenge to a removal order[.]” Delgado v. Quarantillo, 643 F.3d 52,
55 (2d Cir. 2011).

As a result of the REAL ID Act,

[n]otwithstanding any other provision of law
(statutory or nonstatutory), . . . a petition for
review filed with an appropriate court of appeals
in accordance with this section shall be the sole
and exclusive means for judicial review of an order
of removal entered or issued under any provision of
this chapter.
8 U.S.C. § 1252(a)(5).

In addition:

Judicial review of all questions of law and fact,
including
interpretation
and
application
of
constitutional and statutory provisions, arising
from any action taken or proceeding brought to
remove an alien from the United States under this
subchapter shall be available only in judicial
review of a final order under this section. Except
as otherwise provided in this section, no court

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shall have jurisdiction . . . by any other
provision of law (statutory or nonstatutory), to
review such an order or such questions of law or
fact.
8 U.S.C. § 1252(b)(9).

Federal district courts are precluded from

ordering the favorable adjudication of an I-212 application because
“section 1252(a)(5)’s jurisdictional bar applies equally to preclude .
. . an indirect challenge.” Quarantillo, 643 F.3d at 55.
case, “[o]btaining [an I-212]

In this

waiver is a necessary prerequisite to

[the] ultimate goal of adjustment of status.” Quarantillo, 643 F.3d at
55.

Therefore, the court does not have jurisdiction to consider the

plaintiff’s request for an order directing the defendants to grant his
application to reapply for admission into the United States.
In addition, this court does not have jurisdiction under the APA
because “[t]he APA explicitly does not apply ‘to the extent that . . .
statutes preclude judicial review,’ 5 U.S.C. § 701(a)(1), as the REAL
ID Act does in this instance.” Quarantillo, 643 F.3d at 55 (citing Lee
v. U.S. Citizenship and Immigration Servs., 592 F.3d 612, 620 (4th
Cir.2010) (“The claim raised in [the alien's] APA action falls
squarely within the scope of § 1252(a)(2)(B)(i). Although Lee's claim
in his amended complaint is carefully worded to avoid expressly
challenging the denial of his application for adjustment of status,
that is clearly what Lee seeks to do.”)). Nor may this court allow the
plaintiff “to evade the restrictions of section 1252(a)(5) by styling
[his] challenge as a mandamus action in order to claim jurisdiction
under 28 U.S.C. § 1361.”

Quarantillo, 643 F.3d at 56 (citing Lang v.

Napolitano, 596 F.3d 426, 429 (8th Cir. 2010) (holding that there was
an “obvious lack of district court jurisdiction” over claim for

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“injunctive and mandamus relief that would prohibit the agency from
‘executing’

[ ] removal order”)).

IV. Conclusion
For the reasons set forth above, the defendants’ Motion to
Dismiss (Doc. No. 12) is hereby GRANTED.
The Clerk shall close this case.
It is so ordered.
Dated this 28th day of February, 2012 at Hartford, Connecticut.
/s/AWT
Alvin W. Thompson
United States District Judge

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