Sultaliev et al v. Rodriguez et al

Filing 17

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER For the forgoing reasons,1) defendants motion to dismiss (Docket No. 8) is ALLOWED and2) plaintiffs motion to amend their complaint (Docket No. 15) is DENIED.So ordered.(Caruso, Stephanie)

United States District Court
District of Massachusetts
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)
)
)
)
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Plaintiffs,
)
)
v.
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Leon Rodriguez, Director of the )
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United States Citizenship and
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Immigration Services, et al.
)
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Defendants.
)

Akim Sultaliev et al.,
Individually and on Behalf of
All Others Similarly Situated

Civil Action No.
16-12400-NMG

MEMORANDUM & ORDER
GORTON, J.
This immigration case involves several conditional
permanent residents (“plaintiffs”) who filed Form I-751
petitions for permanent resident status.

Plaintiffs,

individually and on behalf of others similarly situated, allege
that United States Citizenship and Immigration Services
(“USCIS”) officials (collectively, “defendants”) unlawfully
failed to process and decide their I-751 petitions within a
reasonable time period.
Pending before the Court are defendants’ motion to dismiss
and plaintiffs’ motion to amend their complaint.

For the

reasons that follow, defendants’ motion will be allowed and
plaintiffs’ motion will be denied.

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I.

Background
A.

Factual Background

Plaintiffs Akim Sultaliev, Kateryna Pshechenko, Iulia
Rybalka, Kevin Clifton and Olga Tolchinsky are conditional
permanent residents who reside in Massachusetts.
Pursuant to the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1186a(a)(1), a foreign national married to a United
States citizen for less than two years can apply for status as a
conditional lawful permanent resident.
In order to remove that conditional status (and become an
unrestricted lawful permanent resident), the married foreign
national must file an I-751 petition 90 days before the two-year
anniversary of the granting of such conditional status.

Both

the foreign national and his or her spouse must also appear for
interviews before an officer of the Department of Homeland
Security.
Section 1186a(d)(3) of the INA provides that the personal
interview must be conducted within 90 days of the date on which
the I-751 petition is filed.

That deadline, as well as the

interview requirement itself, may be waived, however, at the
discretion of the Secretary of Homeland Security.
Each plaintiff in this case has filed an I-751 petition
with the Vermont Service Center but none of the plaintiffs has a

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personal interview scheduled.

In each instance, the application

has been pending for more than 90 days.
B.

Procedural History

In November, 2016, plaintiffs filed a two-count complaint
alleging violations of agency regulations, 8 C.F.R. 216.4(B)(1),
(Count I) and the Administrative Procedure Act, 5 U.S.C. § 701
et seq., (Count II).
Three months later, in February, 2017, defendants moved to
dismiss the complaint for lack of subject matter jurisdiction
and for failure to state a claim upon which relief can be
granted.

After the motion to dismiss was fully briefed,

plaintiffs moved to amend their complaint to add an additional
plaintiff.
II.

This memorandum addresses those pending motions.

Defendants’ Motion to Dismiss
A.

Legal Standards
1.

Lack of Subject Matter Jurisdiction

In opposing a motion to dismiss for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1), the plaintiff bears
the burden of establishing that the Court has jurisdiction.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

If

the defendant mounts a “sufficiency challenge”, the court will
assess the sufficiency of the plaintiff’s jurisdictional
allegations by construing the complaint liberally, treating all
well-pled facts as true and drawing all reasonable inferences in

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the plaintiff’s favor. Valentin v. Hospital Bella Vista, 254
F.3d 358, 363 (1st Cir. 2001).
If, however, the defendant advances a “factual challenge”
by controverting the accuracy, rather than the sufficiency, of
the alleged jurisdictional facts, “the plaintiff’s
jurisdictional averments are entitled to no presumptive weight”
and the court will consider the allegations by both parties and
resolve the factual disputes. Id.

The court has “broad

authority” in conducting the inquiry and can, in its discretion,
consider extrinsic evidence in determining its own jurisdiction.
Id. at 363-64.
2.

Failure to State a Claim

To survive a motion to dismiss for failure to state a claim
under Fed. R. Civ. P. 12(b)(6), a complaint must contain
“sufficient factual matter” to state a claim for relief that is
actionable as a matter of law and “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is

facially plausible if, after accepting as true all nonconclusory factual allegations, the court can draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d
1, 12 (1st Cir. 2011).

A court may not disregard properly pled

factual allegations even if actual proof of those facts is

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improbable. Id.

Rather, the relevant inquiry focuses on the

reasonableness of the inference of liability that the plaintiff
is asking the court to draw. Id. at 13.
When rendering that determination, a court may not look
beyond the facts alleged in the complaint, documents
incorporated by reference therein and facts susceptible to
judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st
Cir. 2011).
B.

Application
1.

The Court’s Jurisdiction
a.

The Secretary’s discretion

First defendants contend that, pursuant to 8 U.S.C.
§ 1252(a)(2)(B)(ii), this Court lacks subject matter
jurisdiction over plaintiffs’ claims.

Plaintiffs generally

disagree, although they do not directly address that statutory
provision.
Section 1252(a)(2)(B) of the INA provides that “no court
shall have jurisdiction to review”
any . . . 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)(ii).

The “subchapter” referenced

therein includes § 1186a which is at issue in this case. Alaka
v. Att’y Gen. of the U.S., 456 F.3d 88, 97 n.17 (3d Cir. 2006).

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Defendants direct the Court to 8 U.S.C. § 1186a(d)(3) which
gives the Secretary of Homeland Security (“the Secretary”)
discretion to “waive the deadline for . . . an interview or the
requirement for . . . an interview” when appropriate.

Thus,

according to defendants, because it is within the Secretary’s
discretion to waive the 90-day window, the Court lacks subject
matter jurisdiction over the suit, pursuant to 8 U.S.C.
§ 1252(a)(2)(B)(ii).
The Court does not disagree with defendants that if the
Secretary made such a determination the Court would not have
jurisdiction over plaintiffs’ claims, but here, the Secretary
apparently has taken no action whatsoever on plaintiffs’
applications.

Such inaction is not within the Secretary’s

discretion. Anjum v. Hansen, No. 2:06-cv-00319, 2007 WL 983215,
at *5 (S.D. Ohio Mar. 28, 2007).

Moreover, as defendants

concede in their reply to plaintiffs’ opposition memorandum,
they have a non-discretionary duty to adjudicate the petitions
within a “reasonable time”.
Therefore, the Court concludes that it has subject matter
jurisdiction.
b.

Lack of standing

Second, defendants aver that the case should be dismissed
pursuant to Fed. R. Civ. P. 12(b)(1) because plaintiffs lack
standing.

Here, the Court agrees with defendants.

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To have standing, plaintiffs must allege an injury in fact
that is “concrete and particularized”. Reddy v. Foster, 845 F.3d
493, 500 (1st Cir. 2017) (quoting Susan B. Anthony List v.
Driehaus, 134 S. Ct. 2334, 2341 (2014)).
Here, plaintiffs allege that, without valid permanent
resident status,
foreign nationals are often denied employment, student
loans and other benefits, and refused permission to
board the plane to return to the United States.
The individual plaintiffs do not, however, allege any facts
suggesting that they have suffered any such harms.

Their

conclusory assertion that they have been “adversely affected or
aggrieved” is insufficient to show a concrete and particularized
injury necessary to establish standing. See Hochendoner v.
Genzyme Corp., 823 F.3d 724, 731 (1st Cir. 2016) (“[T]he party
asserting standing must not only allege injurious conduct
attributable to the defendant but also must allege that he,
himself, is among the persons injured by that conduct.” (citing
Lujan v. Defs. of Wildlife, 504 U.S. 555, 563 (1992))).
Although plaintiffs claim that an agency’s failure to issue
an immigration decision or to schedule an interview within 90
days is itself an injury, the United States Supreme Court has
explained that a “bare procedural violation” will not satisfy
the injury-in-fact requirement. Spokeo, Inc. v. Robins, 136 S.
Ct. 1540, 1549 (2016).

In the one case cited by plaintiffs in

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support of its assertion, the court concluded that the
plaintiffs had standing because the
Government’s failure to provide timely adjudication of
their applications has exposed them and their families
to serious, imminent threats to their life and wellbeing as a result of their service to the United
States.
Nine Iraqi Allies Under Serious Threat Because of Their Faithful
Service to the United States v. Kerry, 168 F. Supp. 3d 268, 281
(D.D.C. 2016).
Unlike the plaintiffs in Nine Iraqi Allies who alleged
serious threats of harm, plaintiffs do not allege any specific
harm that they have experienced or will experience.

Therefore,

they cannot establish standing. See Spokeo, 136 S. Ct. at 1549
(“[Plaintiff] cannot satisfy the demands of Article III by
alleging a bare procedural violation.”).
Accordingly, plaintiffs’ claims will be dismissed for lack
of standing.
2.

Failure to State a Claim

Because the Court concludes that plaintiffs lack standing,
it declines to consider whether plaintiffs have stated a claim
upon which relief can be granted.
III. Plaintiffs’ Motion to Amend Their Complaint
A.

Legal Standard

The Court has broad discretion under Fed. R. Civ. P.
15(a)(2) to allow the plaintiff to amend his pleadings and

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“should freely give leave when justice so requires.” United
States ex rel. Gagne v. City of Worcester, 565 F.3d 40, 48 (1st
Cir. 2009).

Courts may deny such leave to amend, however, if

the amendment would be “futile.” Palmer v. Champion Mortg., 465
F.3d 24, 30 (1st Cir. 2006).
B.

Application

Plaintiffs move to amend their complaint to add one
individual plaintiff, Nataliya I. Moran.

Ms. Moran’s I-751

application has been pending for at least 16 months as of
February, 2017.
Allowing leave to amend would be futile, however, because
the proposed amended complaint does not provide any concrete
factual allegations with respect to any harm that the individual
plaintiffs, including Ms. Moran, has suffered.

Therefore,

plaintiffs’ motion to amend will be denied. See Snyder v.
Collura, 812 F.3d 46, 51-52 (1st Cir. 2016) (affirming denial of
plaintiff’s motion to amend his complaint because the proposed
complaint “did not contain new facts”).

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ORDER
For the forgoing reasons,
1)

defendants’ motion to dismiss (Docket No. 8) is
ALLOWED and

2)

plaintiffs’ motion to amend their complaint (Docket
No. 15) is DENIED.

So ordered.
/s/ Nathaniel M. Gorton
d
Nathaniel M. Gorton
United States District Judge
Dated July 10, 2017

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