TURKMEN et al v. Holder et al

Filing 46

OPINION, MEMORANDUM, AND ORDER: IT IS HEREBY ORDERED that the Motion to Dismiss for Lack of Subject Matter Jurisdiction, Remand, and in the Alternative Sever, is granted in part and denied in part. IT IS FURTHER ORDERED that the claims of Plaintiffs Salim Khan and Mowaffug Shalabi are remanded to the USCIS as provided herein. IT IS FURTHER ORDERED that the claims of Plaintiffs Shannon Sawlan and Adnan Sawlan are dismissed. IT IS FURTHER ORDERED that the Motion to Dismiss the claims of the remaining Plaintiffs is denied, without prejudice. Signed by Honorable Henry E. Autrey on 6/10/10. (TRC)

U N IT E D STATES DISTRICT COURT E A S T E R N DISTRICT OF MISSOURI EASTERN DIVISION M E H M E T TURKMEN, et al., P la in tif fs , vs. E R IC HOLDER, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) )

N o . 4:09CV1042 HEA

O P IN I O N , MEMORANDUM AND ORDER T h is matter is before the Court on Defendants' Motion to Dismiss, [Doc. No. 1 5 ]. Plaintiffs oppose the motion. The matter is now fully briefed. For the re a s o n s set forth below, the Motion is granted in part and denied in part, without p re ju d ic e ; the alternative motion to remand is granted as to those Plaintiffs seeking a d ju d ic a tio n of their naturalization petitions.1 I n t r o d u c tio n P la in tiffs ' Second Amended Complaint alleges the following: P la in tiffs brought this action against Defendants seeking to compel action on v a rio u s applications and petitions for immigration benefits filed by or on behalf of P la in tiffs with the United States Citizenship and Immigration Services (USCIS).

Defendants alternatively seek severance of Plaintiffs' claims, arguing that they are not properly joined in one action. Because of the Court's ruling herein, the Court need not address the severance issue at this time.

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P la in tiffs claim that Defendants have wrongfully withheld adjudication and/or f a ile d to adjudicate the petitions and applications in a timely manner, to Plaintiffs' d e trim e n t. Plaintiffs further contend that Defendants have unlawfully denied c e rta in Plaintiffs' applications on improper grounds and in retaliation for filing this s u it. F a cts and Background P la in tiffs ' base their claims on 28 U.S.C. §§ 1331, the Federal Question S ta tu te ; 28 U.S.C. §1361, the Mandamus and Venue Act of 1962 ("Mandamus A c t" ); and 28 U.S.C. § 2201, the Declaratory Judgment Act ("DJA"); 5 U.S.C. §§ 5 5 5 (b ) and 701 et seq., the Administrative Procedures Act ("APA"). Alternatively, c e rta in Plaintiffs also seek a direct ruling by this Court pursuant to 8 U.S.C. § 1 4 4 7 , Immigration and Nationality Act ("INA"). S in c e the filing of this action, several Plaintiffs have been dismissed, th e re fo re , this Memorandum and Order will include only those Plaintiffs remaining in this action. The parties have separated Plaintiffs into specific categories with re s p e c t to their claims. Plaintiff Lisa Turkmen, (Plaintiff 1), a citizen of the United States who filed w ith the USCIS an I-130 Petition for Alien Relative on behalf of her husband, P la in tiff Mehmet Turkmen, (Plaintiff 2), a citizen of Turkey. Mehmet Turkmen

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c o n c u rre n tly filed with USCIS an I-485 Application to Adjust Status to Permanent R e s id e n t. P la in tiff Detria Yousaf, (Plaintiff 3), is a citizen of the United States who file d with the USCIS an I-130 Petition for Alien Relative on behalf of her husband, P la in tiff Mohammad Yousaf (Plaintiff 4), a citizen of Tanzania. Mohammad Y o u s a f concurrently filed an I-485 Application to Adjust Status to Permanent R e s id e n t. Plaintiff Margaret Dundon, (Plaintiff 5), is a citizen of the United States who file d with the USCIS an I-130 Petition for Alien Relative on behalf of her husband, P la in tiff Abubakar Abulfathi, (Plaintiff 6), a citizen of Nigeria. Abubakar A b u lfa th i concurrently filed with USCIS an I-485 Application to Adjust Status to P e rm a n e n t Resident. P la in tiff Salim Khan, (Plaintiff 9), citizen of Burma (Myanmar), filed an N4 0 0 Application for Naturalization. The application is currently pending with the U S C IS St. Louis Field Office. Plaintiff Shellise Sheldon-Maipandi, (Plaintiff 10), is a citizen of the United S ta te s who filed with the USCIS an I-130 Petition for Alien Relative on behalf of h e r husband, Plaintiff Obeth Maipandi, (Plaintiff 11), a citizen of Nigeria. Plaintiff Bibizwe Mbatha, (Plaintiff 17), a citizen of South Africa, filed with

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U S C IS an I-485 Application to Adjust Status to Permanent Resident. P la in tiff Maria Levin, (Plaintiff 22), is a citizen of the United States who file d with the USCIS an I-130 Petition for Alien Relative on behalf of her husband, P la in tiff Nodir Akhmedov, (Plaintiff 23), a citizen of Uzbekistan. Plaintiff Malik Ali, (Plaintiff 25), is a citizen of the United States who filed w ith the USCIS an I-130 Petition for Alien Relative on behalf of his wife, Plaintiff P a m e la Karanja , (Plaintiff 26), a citizen of Tanzania. Pamela Karanja c o n c u rre n tly filed with USCIS an I-485 Application to Adjust Status to Permanent R e s id e n t. P la in tiff Shannon Sawlan, (Plaintiff 28), is a citizen of the United States who file d with the USCIS an I-130 Petition for Alien Relative on behalf of her husband, P la in tiff Adnan Sawlan, (Plaintiff 29), a citizen of Yeman. Plaintiff 28 claims that u p o n learning of her intent to file a mandamus action with this Court, the USCIS St L o u is Field Office unlawfully denied the petition on improper grounds. P la in tiff Isidro Campos-Romero, (Plaintiff 33) is a citizen of Mexico who file d with the USCIS an I-485 Application to Adjust Status to Permanent Resident. Plaintiff claims that upon learning of his intent to file a mandamus action with this C o u rt, the USCIS St. Louis Field Office unlawfully denied his application on im p ro p e r grounds.

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P la in tiff Mowaffug Shalabi, (Plaintiff 34), is a citizen of Jordan who filed w ith the USCIS an N-4000 Application for Naturalization. Discussion P la in tiffs seeking adjudication of I-130 petitions and I-485 applications D e fe n d a n ts move to dismiss for lack of subject matter jurisdiction. Federal c o u r ts are courts of limited jurisdiction only authorized to adjudicate those cases w h ic h the Constitution and the laws of Congress permit. Kokkonen v. Guardian L ife Ins. Co. of America, 511 U.S. 375, 377 (1994). A motion to dismiss for lack o f subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil P r o c e d u re may challenge either the facial sufficiency or the factual truthfulness of th e plaintiff's jurisdictional allegations. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1 9 9 3 ). When passing on a facial challenge, a court must presume that all of the p la in tiff's jurisdictional allegations are true. Id. The motion must be granted if the p la in tiff has failed to allege a necessary element supporting subject matter ju ris d ic tio n . Id. A court confronted with a factual challenge must weigh the c o n flic tin g evidence concerning jurisdiction, without presuming the truthfulness of th e plaintiff's allegations. Land v. Dollar, 330 U.S. 731, 735 n.4 (1946); Osborn v. U n ite d States, 918 F.2d 724, 730 (8th Cir. 1990).

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Defendants do not challenge the truthfulness of the allegations regarding P la in tiffs ' claims. Rather, they contend that the bases upon which Plaintiffs bring th e ir Complaint fail to provide the Court with subject matter jurisdiction. Defendants, therefore, facially challenge the Court's subject matter jurisdiction. T h e Court presumes the truth of Plaintiffs' jurisdictional allegations. Defendants a rg u e that the Plaintiffs' complaints arise from discretionary acts of Defendants. Section 1255(a) of Title 8 provides that the status of an alien may be adjusted by th e Attorney General, in his discretion. "Adjustment of status is a discretionary d e c is io n committed to the Attorney General. See 8 U.S.C. § 1255." Dukuly v. F ilip , 553 F.3d 1147, 1149 (8th Cir. 2009). Section 1255(a) provides, in pertinent p a rt: T h e status of an alien. . .may be adjusted by the Attorney General, in h is discretion and under such regulations as he may prescribe, to that o f an alien lawfully admitted for permanent residence if (1) the alien m a k e s an applications for such adjustment, (2) the alien is eligible to re c e iv e an immigrant visa and is admissible to the United States for p e rm a n e n t residence, and (3) the immigrant visa is immediately a v a ila b le to him at the time his application is filed. D e fe n d a n ts argue that because the adjustment of status is committed to the d is c r e tio n , judicial review of the pace at which the decision on Plaintiff's a d ju s tm e n t of status applications and petitions is precluded. Defendants further argue that the APA, the Mandamus Act and the Fifth

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A m e n d m e n t do not provide a proper basis for subject matter jurisdiction. This very C o u rt, in Tan v. Chert off, 2007 WL 1880742 (E.D. Mo. June 29, 2007), found that it was without jurisdiction to consider the Plaintiff's claim that the pace at which F B I name checks were being conducted was unreasonable.2

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I n Tan, the Court held the following with respect to the Mandamus Act: The

M a n d a m u s Act provides that "[t]he district courts shall have original jurisdiction in a n y action in the nature of mandamus to compel an officer or employee of the U n ited States or any agency thereof to perform a duty owed to the plaintiff." 28 U .S .C . § 1361. "A district court may grant a writ of mandamus only in e x tra o rd in a ry situations and only if: (1) the petitioner can establish a clear and in d is p u ta b le right to the relief sought, (2) the defendant has a nondiscretionary duty to honor that right, and (3) the petitioner has no other adequate remedy." Castillo v. R id g e , 445 F.3d 1057, 1060-61 (8th Cir.2006) (citation omitted). T h e Immigration and Nationality Act, 28 U.S.C. § 1255(a) provides: T h e status of an alien who was inspected and admitted or p a ro le d into the United States or the status of any other a lie n having an approved petition for classification as a V A W A self-petitioner may be adjusted by the Attorney G e n e ra l, in his discretion and under such regulations as h e may prescribe, to that of an alien lawfully admitted for p e rm a n e n t residence if (1) the alien makes an application fo r such adjustment, (2) the alien is eligible to receive an im m ig ra n t visa and is admissible to the United States for p e rm a n e n t residence, and (3) an immigrant visa is im m e d ia te ly available to him at the time his application is filed. P u r s u a n t to this statutory authority, USCIS has promulgated regulations g o v e r n i n g the adjudication process. See 8 C.F.R. pt. 25. Among the regulations, th e USCIS normally uses the following three background checking mechanisms th a t must be completed before an application may be adjudicated: (1) Interagency B o rd e r Inspection System name check, (2) FBI fingerprint check, and (3) FBI
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name checks. Notably, none of the regulations provide a time limitation within w h ic h USCIS must render a decision on the application or even the amount of time w ith in which the FBI must complete its name check or any other background check c o m p o n e n t. F u r th e rm o re , 8 U.S.C. § 1252(a)(2)(B)(ii) precludes judicial review of d is c r e tio n a r y decisions: N o tw ith s ta n d in g any other provision of law (statutory or n o n s ta tu to ry ), including section 2241 of Title 28, or any o th e r habeas corpus provision, and sections 1361 and 1 6 5 1 of such title, and except as provided in s u b p a ra g ra p h (D), and regardless of whether the ju d g m e n t, decision, or action is made in removal p r o c e e d in g s , no court shall have jurisdiction to review-(i) any judgment regarding the granting of relief under section 1 1 8 2 (h ), 1182(I), 1229b, 1229c, or 1255 of this title, or (ii) any other decision or action of the Attorney General or the S e cre ta ry of Homeland Security the authority for which is specified u n d e r this subchapter to be in the discretion of the Attorney General o r the Secretary of Homeland Security, other than the granting of re lie f under section 1158(a) of this title. D is tric t courts have split on whether the pace that USCIS adjudicates LPR a p p lic a tio n s is discretionary. Some courts have held that the statutory framework p re c lu d e s judicial review of the pace at which USCIS adjudicates LPR a p p lic atio n s . See e.g., Patel v. Chertoff 2007 WL 1223553, *6 (E.D.Mo.,2007) (" In light of the Attorney General's discretion in evaluating applications for a d ju s tm e n t of status, Plaintiffs cannot establish the second prerequisite to m a n d a m u s relief, that Defendants had a non-discretionary duty to act. Moreover, C o n g re s s has precluded judicial review of `any judgment regarding the granting of re lie f under section ... 1255 of this title [adjustment of status], or ... any other d e c is io n or action of the Attorney General or the Secretary of Homeland Security th e authority for which is ... in [their] discretion....' 8 U.S.C. § 1252(a)(2)(B) as a m e n d e d by the Real ID Act of 2005. Since decisions regarding the evaluation of
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an alien's application for adjustment of status are within the Attorney General's d is c re tio n , 8 U.S.C. § 1255, section 1252(a)(2)(B) prohibits this Court from e n te rta in in g Plaintiffs' requests for relief in the nature of a writ of mandamus. See 8 U.S.C. § 1252(a)(2)(B)."(citations and footnote omitted); Grinberg v. Swacina, --- F.Supp.2d ----, 2007 U.S. Dist. LEXIS 19684, at *1 (S.D.Fla. Mar. 20, 2007) (" S e ctio n s 242 and 245 of the Immigration and Nationality Act [8 U.S.C. §§ 1252 a n d 1255] ... preclude judicial review of any discretionary `decision or action' of th e Attorney General in immigration matters includ[ing] the pace at which im m ig ra tio n decisions are made."); Safadi v. Howard, 466 F.Supp.2d 696, 698-700 ( E .D . Va. 2006) (Section 1255(a) vests USCIS with discretion over the entire p r o c es s of adjustment application adjudication, and § 1252(a)(2)(B)(ii) precludes ju d ic ia l review of any action, which includes the pace at which that action p r o c e e d s ) ; Zheng v. Reno, 166 F.Supp.2d 875, 880-81 (S.D.N.Y.2001) ("Matters w ith in the [USCIS]'s discretion are not reviewable under the mandamus statute. T h u s , courts in this district have repeatedly held that mandamus relief is u n a v a ila b le for delays in the adjustment process."). O th e r district courts have concluded that because USCIS has a n o n d is c re tio n a ry duty to render a decision, courts must have jurisdiction in a m a n d a m u s suit alleging that USCIS failed to adjudicate an application within a re a s o n a b le period of time, or else USCIS could indefinitely delay rendering a d e c is io n . See, e.g., Razaq v. Poulos, 2007 U.S. Dist. LEXIS 770, at *4 (N.D.Cal. J a n . 8, 2007) ("Congress had to have intended the executive branch to complete th e s e adjudications within a reasonable time-because imposing no time constraint a t all on the executive branch would be tantamount to giving the government the p o w e r to decide whether it would decide .... A `duty to decide' becomes no duty at a ll if it is accompanied by unchecked power to decide when to decide."); Paunescu v . I.N.S., 76 F.Supp.2d 896, 901 (N.D.Ill.1999) ( "Defendants nevertheless had a n o n -d is c re tio n a ry duty to issue a decision on plaintiffs' applications within a re a s o n a b le time."); Yu v. Brown, 36 F.Supp.2d 922, 932 (D.N.M.1999) (" [A ]d ju d ic a tio n must occur within a reasonable time. A contrary position would p e rm it the [USCIS] to delay indefinitely. Congress could not have intended to a u th o riz e potentially interminable delays .") T h e Court agrees with those courts which conclude that the pace at which U S C IS adjudicates plaintiff's application is discretionary. Defendants have not re fu s e d to act, rather, they have yet to complete the process. The time within w h ic h Defendants complete the process fall squarely within the discretionary
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T h is Court, in Tan, also determined that the APA did not provide a basis in th a t case upon which to exercise jurisdiction. Very recently, however, in Debba v. H e in a u e r , 2010 WL 521002 (8th Cir. 2010), the Eighth Circuit Court of Appeals, in an Opinion not selected for publication, discussed, without deciding, application o f the APA to these particular types of claims. The Debba Court recognized that d is tric t courts in this circuit have found jurisdiction to consider claims of u n re as o n a b le delay in adjudication of applications and petitions. In Debba, Plaintiff filed a complaint, invoking the federal question statute, 2 8 U.S.C. § 1331, the Administrative Procedure Act (APA), 5 U.S.C. § 701, and th e mandamus statute, 28 U.S.C. § 1361, asking the court to compel the officials " t o perform their duty to adjudicate [Plaintiff's] I-485 application." [Plaintiff] a lle g e d the officials had "willfully and unreasonably delayed and ha[d] refused to a d ju d ic a te [his] applications," and that the officials "owe[d] [Plaintiff] a duty to a d ju d ic ate [his] applications and ha[d] unreasonably failed to perform that duty."

provisions of Section 1255. Because Title 8, Section 1252(a)(2)(B)(ii) specifically e x c lu d e s these actions from judicial review, the court does not have jurisdiction to e n te rta in plaintiffs' mandamus action.

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T h e officials moved to dismiss the complaint for lack of subject matter jurisdiction, a rg u in g that 8 U.S.C. § 1252(g) and 1252(a)(2)(B)(ii) barred judicial review, that th e re is no statutory requirement that the officials make a decision on an a d ju s tm e n t application within any specified period of time, and that because the u ltim a te decision on whether to adjust Plaintiff's status is discretionary and u n re v ie w a b le under 8 U.S.C. § 1182(d)(3)(B)(I), the reasonableness of the time e la p s ed before making such a decision is also unreviewable. D e fe n d a n ts alternatively moved for summary judgment, arguing that any d e la y by the USCIS in deciding Plaintiff's application was reasonable. In support o f their motion, they attached several items which they were considering that were re le v a n t to the determination. The district court denied the motion to dismiss. The Eighth Circuit noted th a t the district court had "apparently concluded that it had subject matter ju ris d ic tio n under 28 U.S.C. § 1331 to consider Debba's claim based on the APA. S e e Califano v. Sanders, 430 U.S. 99, 104-07 (1977)." Id. The district court then g ra n te d summary judgment for Defendants, holding that it would "refrain from im p o s in g its own judicially constructed deadline" on the processing of Plaintiff's a d ju s tm e n t application. The Debba Defendants did not argue on appeal that 8 U.S.C. §§ 1252(g) or

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1 2 5 2 (a )(2 )(B )(ii) barred the district court from considering Plaintiff's claim. The A p p e lla te Court held that it did not need to consider questions of "statutory ju r is d ic tio n " sua sponte, citing Steel Co. v. Citizens for a Better Environment, 523 U .S . 83, 97 n. 2 (1998); Lukowski v. INS, 279 F.3d 644, 647 n. 1 (8th Cir.2002); R o y a l Siam Corp. v. Chertoff, 484 F.3d 139, 142-44 (1st Cir.2007); Kramer v. G a te s , 481 F.3d 788, 790-91 (D.C.Cir.2007). The Eighth Circuit went on to re co g n iz e "[b]ecause the APA provides that an agency shall proceed to conclude a m a tte r presented to it `within a reasonable time,' 5 U.S.C. § 555(b), and states that a reviewing court `shall compel agency action unlawfully withheld or unreasonably d e la y e d ,' id. § 706(1), some courts have reasoned that a district court has authority to order the officials to decide an adjustment application if the delay has been u n re as o n a b le . Villa v. U.S. Dep't of Homeland Sec., 607 F.Supp.2d 359, 363-64 (N .D .N .Y .2 0 0 9 ); Nigmadzhanov v. Mueller, 550 F.Supp.2d 540, 543-48 (S .D .N .Y .2 0 0 8 ); Burni v. Frazier, 545 F.Supp.2d 894, 906 (D.Minn.2008)." Debba, 2010 WL 521002 at *2. The Court concluded that it "need not decide w h e th e r a case of extreme delay by the relevant federal agency could amount to a `f a ilu re to act,' 5 U.S.C. § 551(13), that would give the district court authority u n d e r the APA to compel agency action `unlawfully withheld.' Id. § 706(1). See N o r to n v. S. Utah Wilderness Alliance, 542 U.S. 55, 62-64 (2004)." Even

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a s s u m in g in the Plaintiff's favor that there is a "reasonable time" requirement for re s o lv in g adjustment applications, Plaintiff had not established that the delay in th is case was unreasonable. Id. I n the instant case, Plaintiffs allege, among other things, that Defendants are d e lib e r a te ly withholding adjudication and are failing to act; they claim Defendants' a c tio n s are due to bias or prejudice against certain groups, conducting in v e s tig a tio n s in an improper manner, and misrepresenting the requirements for a p p r o v a l of the applications and petitions. D e fe n d a n ts , on the other hand, have submitted the affidavit of Mr. Chester S . Moyer, Field Office Director of the St. Louis office of USCIS. Mr. Moyer d e c la re s that a computer search was conducted and that the USCIS is still in v e s tig a tin g the facts underlying the applications and petitions, and that the in v e s tig a tio n s are ongoing. Because the Court considers the facts of the Amended Complaint as true for th e purposes of its jurisdictional determination, the Court is unable to ascertain at th is time whether it would have jurisdiction pursuant to the APA based on a fin d in g that Defendants are acting unreasonably in the adjudications of the a p p lic a tio n s and petitions. Although Defendants contend that the facts are still b e in g investigated, they offer no support for what facts these are and why they are

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b e in g investigated. The Court recognizes that some of the facts involved in the a p p lic atio n s and petitions may be sensitive in nature and that Defendants may rig h tfu lly seek to withhold disclosure of those facts. Defendants, however, have n o t represented to the Court that this is indeed the situation for failing to disclose th e facts being investigated. If this is Defendants' concern, they are at liberty to re q u e s t an in camera inspection by the Court of the facts. In cases finding that Defendants have not acted unreasonably with respect to th e adjudication of the I-130 petitions and I-485 applications, the courts were able to consider the specific facts being considered and actions being taken. Here, the C o u rt simply has insufficient information to properly assess whether it has ju ris d ic tio n to consider Plaintiffs claims based on any unreasonable delays. As s u c h , the Court will deny the Motion to Dismiss, without prejudice to refiling, as to th o s e Plaintiffs seeking approval of their I-130 petitions and I-485 applications. A p p lic a tio n s for Naturalization T h e Court agrees with Defendants that the claims for adjudication of the a p p lic a tio n s for naturalization under 8 U.S.C. § 1447(b) should be remanded to the U S C IS for adjudication. While section 1447(b) gives the Court discretion to a d ju d ic ate naturalization applications, the majority of courts considering the matter h a v e acknowledged that the USCIS' primary function is to evaluate the merits of

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s u c h applications and it is better-equipped to do so. See e.g. Ahmed v. Holder WL 3 2 2 8 6 7 5 , 6 -7 (E.D.Mo.,2009)(remand is appropriate); Obanigba v. Chertoff, 2008 W L 294332, *3- 4 (E.D.Mo. Jan.31, 2008) (same); Fattah et al. v. Gonzales, et al., 2 0 0 7 WL 3119844, *3 (E.D.Mo.2007) (better to remand to action to USCIS for fu rth e r evaluation); Wang v. Mueller, 2007 WL 2873415, *2 (E.D.Mo.2007) (r e m a n d to USCIS for final determination); Shalabi v. Gonzales, 2006 WL 3 0 3 2 4 1 3 , *5 20 (E.D.Mo.2006); Al-Ashwan v. Chertoff, 2007 U.S. Dist. LEXIS 8 6 7 7 (E.D.Mo.2007) (remanding because USCIS "is in a better position to c o m p le te the application process than this Court"). T h u s , as to Plaintiffs whose applications have not yet been finally a d ju d ic a te d , the Court will remand their applications to the USCIS with specific in s tru c tio n s for those applications to be fully processed and determined as e x p e d itio u s ly as possible. P la in t if fs Challenging Various Decisions made by USCIS P la in tif f 28 has filed an administrative appeal of the decision to deny her I1 3 0 petition. Thus, there has been no final agency decision and the Court, th e re fo re cannot consider her claim. See, Patel v. Chertoff 2007 WL 1223553, 3 (E .D .M o .,2 0 0 7 )(" [F ]e d e ra l jurisdiction under the APA is lacking when the agency d e c is io n is not final within the meaning of 5 U.S.C. § 704. National Parks

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C o n s e r v a tio n Assoc. v. Norton, 324 F.3d 1229, 1239 (11th Cir.2003); see also In d e p e n d e n t Petroleum Ass'n of America v. Babbitt, 235 F.3d 588, 594 (D .C .C ir.2 0 0 1 ); Attias v. Chertoff, No. 4:06CV00534 CAS, 2006 WL 1738377, at * 2 (E.D. Mo. June 22, 2006) (unreported); Jabr v. Chertoff, No. 4:06CV00543 R W S , 2006 WL 3392504, at *2 (E.D.Mo. November 21, 2006) (slip opinion).") Without an approved petition, Plaintiff 29 is not entitled to approval of his a p p lic a tio n for adjustment of status. 8 U.S.C. 1255(a). Thus, Plaintiff 29 cannot, a t this time, state a claim. J u d ic ia l review of the denial of the application of Plaintiff 33 is precluded by 8 U.S.C. § 1252(a)(2)(B)(I), which provides: 2) Matters not subject to judicial review * * * * * * * * *

* ( B ) Denials of discretionary relief Notwithstanding any other provision of law (statutory or n o n s ta tu to r y ), including section 2241 of Title 28, or any other habeas c o rp u s provision, and sections 1361 and 1651 of such title, and except a s provided in subparagraph (D), and regardless of whether the ju d g m e n t, decision, or action is made in removal proceedings, no c o u r t shall have jurisdiction to review-(I) any judgment regarding the granting of relief under section 1 1 8 2 (h ), 1182(I), 1229b, 1229c, or 1255 of this title[.] C o n c lu s io n

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B a s e d upon the foregoing, the Motion to Dismiss is granted as to Plaintiffs 2 8 , 29 and 33. The Motion is denied as to Plaintiffs 1, 2, 3, 4, 5, 6, 10, 11, 17, 22, 2 3 , 25, and 26. The alternative motion to remand is granted as to Plaintiffs 9 and 34. A c c o r d in g ly , IT IS HEREBY ORDERED that the Motion to Dismiss for Lack of Subject M a tte r Jurisdiction, Remand, and in the Alternative Sever, is granted in part and d e n ie d in part. IT IS FURTHER ORDERED that the claims of Plaintiffs Salim Khan and M o w a ffu g Shalabi are remanded to the USCIS as provided herein. I T IS FURTHER ORDERED that the claims of Plaintiffs Shannon Sawlan a n d Adnan Sawlan are dismissed. I T IS FURTHER ORDERED that the Motion to Dismiss the claims of the re m a in in g Plaintiffs is denied, without prejudice. Dated this 10th day of June, 2010.

________________________________ HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

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