Yammine v. Clinton et al

Filing 13

Judge Richard G. Stearns: ORDER entered granting 7 Motion to Dismiss (RGS, law2)

Yammine v. Clinton et al

Doc. 13

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. 10-11920-RGS ADEL YAMMINE v. HILLARY RODHAM CLINTON, ALEJANDRO MAYORKAS, JANET NAPOLITANO, ERIC HOLDER, JR., and CARMEN ORTIZ MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS April 8, 2011 STEARNS, D.J. The motion to dismiss will be allowed. The plaintiff, Adel Yammine, fails to state a claim upon which relief can be granted. In his Complaint, Yammine seeks an adjustment of status for his wife and children based on his previous status as a legal permanent resident. However, because Yammine has been naturalized as a U.S. citizen, he is expressly required to file an immediate relative petition for his family members. See 9 U.S. Dep't of State, Foreign Affairs Manual 40.1 N7.2-4 ("A `following to join' derivative [in this case, each of Yammine's family members] must immigrate to the United States prior to any naturalization as a U.S. citizen [of the principal, in this case, Mr. Yammine]. If the alien fails to immigrate prior to any naturalization the citizen [Yammine] must file an immediate relative petition for the family members."). Because Yammine's wife and children are no longer eligible for

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their immigrant visas as "following to join" derivatives, the Court is unable to grant the adjustment of status sought by the Complaint. The government also argues with some force that the court lacks jurisdiction to review a decision by a consular officer to grant or deny a visa. See, e.g., Kleindienst v. Mandel, 408 U.S. 753, 766-767 (1972); Centeno v. Shultz, 817 F.2d 1212, 1213 (5th Cir. 1987); see also Hermina Sague v. United States, 416 F. Supp. 217, 219 (D.P.R. 1976) ("It has been consistently held that the consular officer's decision to issue or withhold a visa is not subject, either to administrative or judicial review."). The First Amendment cases cited by Yammine, such as Adams v. Baker, 909 F.2d 643 (1st Cir. 1990), and Allende v. Shultz, 845 F.2d 1111 (1st Cir. 1988), do not apply to the circumstances of this case. ORDER Defendants' Motion to Dismiss is ALLOWED pursuant to Fed. R. Civ. P. 12(b)(6). The Clerk will enter an order of dismissal and close the case.

SO ORDERED. /s/ Richard G. Stearns ________________________________ UNITED STATES DISTRICT JUDGE

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