Singh et al v. United States of America et al
Filing
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ORDER granting 12 Motion to Dismiss: For the reasons stated in the attached Memorandum and Order, this Court lacks jurisdiction to review the denial of Singhs Application for an Adjustment of Status. Accordingly, defendants motion to dismiss (Doc. No. 12) is GRANTED. The Clerk of Court is directed to dismiss this action, and to close this case. Ordered by Judge Roslynn R. Mauskopf on 6/24/2013. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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HARJINDER SINGH and LAKHVIR
KAUR,
MEMORANDUM & ORDER
12-CV-5047 (RRM)
Plaintiffs,
- against UNITED STATES OF AMERICA, et al.,
Defendants.
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ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiffs Harjinder Singh and Lakhvir Kaur commenced this action on October 9, 2012,
challenging the denial of Singh’s Application for an Adjustment of Status by the United States
Citizenship and Immigration Services (“USCIS”). (Doc. No. 1.) Before the Court is defendants’
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1). (Doc. No. 12.) For the reasons that
follow, defendants’ motion is GRANTED.
STANDARD OF REVIEW
On a motion to dismiss, the Court’s review is “limited to facts stated on the face of the
complaint, in documents appended to the complaint or incorporated in the complaint by
reference, and to matters of which judicial notice may be taken.” Allen v. WestPoint-Pepperell,
Inc., 945 F.2d 40, 44 (2d Cir. 1991). To withstand a motion to dismiss, the complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). At this stage, the Court takes all factual allegations in the complaint as
true and draws all reasonable inferences in favor of the non-movant. See Harris v. Mills, 572
F.3d 66, 71 (2d Cir. 2009).
Where jurisdiction is challenged, “[t]he party invoking federal jurisdiction bears the
burden of establishing” that jurisdiction actually exists. Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992); Sharkey v. Quarantillo, 541 F.3d 75, 82-83 (2d Cir. 2008). Thus, plaintiffs are
required to allege facts that, if true, would confer jurisdiction on this Court. “At the pleading
stage, general factual allegations . . . may suffice [to establish jurisdiction], for on a motion to
dismiss [the Court] presume[s] that general allegations embrace those specific facts that are
necessary to support the claim.” Lujan, 504 U.S. at 561. However, the Court is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Sharkey, 541 F.3d at 83
(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
FACTUAL BACKGROUND
Plaintiff Singh is a native and citizen of India, whose visa expired on August 17, 1992.
(Compl. (Doc. No. 1) ¶ 13.) On October 22, 1996, Singh married Jacqueline Whiting, a United
States citizen, in New York. (Id. ¶ 14.) Following the marriage, Whiting filed an Alien Relative
Petition (USCIS Form I-130) on Singh’s behalf and Singh simultaneously filed an Application
for Adjustment of Status (USCIS Form I-485). (Id.) On or about May 16, 2001, the USCIS
denied Singh’s I-485 Application. (Id. ¶ 15.)
On January 2, 2003, Singh’s employer petitioned for an employment visa on his behalf.
(Id. ¶ 17.) That petition was approved. (Id.) Singh and Whiting divorced on August 15, 2006.
(Id. ¶ 16.) One year later Singh filed a second I-485 Application. (Id. ¶ 17.) The USCIS issued
Singh a Request for Evidence, seeking documentation establishing the bona fides of his marriage
to Whiting. (Id. ¶ 18.) Singh submitted copies of joint bank account statements from the years
1997 through 1999, as well as copies of the debit cards for those accounts. (Id.) On March 11,
2011, the USCIS denied Singh’s second I-485 Application. (Id. ¶ 19.)
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On April 12, 2011, Singh moved to reopen and reconsider the denial of his second
application based on a belief that he was eligible for “grandfathering” under the Immigration and
Nationality Act (“INA”). (Id. ¶ 20.) In support of his motion, Singh submitted additional
evidence, including a copy of his marriage certificate, Whiting’s birth certificate, an affidavit
from Whiting, and three photographs of Singh and Whiting together. (Id.; Exs. C-F.) On
February 17, 2012, the USCIS granted Singh’s motion to reopen and reconsider his case but
again denied his I-485 Application. (Id. ¶ 20.) The denial was based on a finding that Singh had
failed to prove his marriage to Whiting was bona fide and therefore could not show that the
Petition filed by Whiting was “approvable when filed.” (Id. ¶ 21.) On March 12, 2012, Singh
filed another motion to reconsider, which was dismissed. (Id. ¶ 22.)
Plaintiffs then brought this action on October 9, 2012, challenging the denial of Singh’s I485 Application.1 Pursuant to Rule 12(b)(1), defendants have moved to dismiss the complaint on
the ground that this Court lacks jurisdiction over the UCSIS’s denial of Singh’s application.
(Defs.’ Mem. in Supp. (Doc. No. 12-1) at 5-9.) In the alternative, defendants argue that they are
entitled to summary judgment on plaintiffs’ claims under Rule 56. (Id. at 10-12.) Plaintiffs
argue that this Court has jurisdiction under the Administrative Procedure Act (“APA”).2
DISCUSSION
Applications for an adjustment of immigration status are governed by the provisions of
the INA. Pursuant to section 1255(a) of that Act, “[t]he status of an alien who was inspected and
admitted or paroled into the United States . . . may be adjusted by the Attorney General, in his
1
The only allegations in the complaint concerning Plaintiff Kaur are that she “is Mr. Singh’s [current] wife, and
filed an Application for Adjustment of Status . . . as the . . . derivative beneficiary of her husband’s approved visa
petition.” (Compl. ¶ 1.)
2
Technically, the APA itself does not confer jurisdiction. See Califano v. Sanders, 430 U.S. 99, 107 (1977);
Sharkey, 541 F.3d at 84. Rather, the authority to hear a case flows from the Court’s federal question jurisdiction,
which confers jurisdiction in suits that “arise[] under” a “right of action” created by the APA. See 28 U.S.C. § 1331;
Bowen v. Massachusetts, 487 U.S. 879, 891 n.16 (1988).
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discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted
for permanent residence” if certain criteria are met. 8 U.S.C § 1255(a). Singh, however, was not
eligible for an adjustment of status under this section because he was not lawfully present in the
United States at the time of his application. See id. § 1255(c). Still, an adjustment may be
granted if the applicant is eligible for “grandfathering” under the INA. See id. § 1255(i)(1)(B)(i);
Butt v. Gonzales, 500 F.3d 130, 132-33 (2d Cir. 2007). In order to be grandfathered, Singh
“must be the beneficiary of either a petition for classification under section 204 of the INA, filed
on or before April 30, 2001, or an application for a labor certification under section 212(a)(5)(A)
of the INA, filed on or before April 30, 2001.” Butt, 500 F.3d at 132 (internal citations omitted)
(emphasis omitted).
The parties do not dispute Singh’s eligibility for consideration under above criteria.3
However, in order to be eligible for grandfathering, Singh’s application must also have been (1)
“properly filed” and (2) “approvable when filed.” 8 C.F.R. § 245.10(a)(1)(i)(B). “Approvable
when filed” means that the application must have been “properly filed, meritorious in fact, and
non-frivolous.” Id. § 245.10(a)(2)(3). Where an application was based on marriage to a United
States citizen, proving that the application was “meritorious in fact” requires an adequate
showing that the marriage was bona fide. See In Re Riero, 24 I. & N. Dec. 267 (BIA 2007)
(concurring with the holding in Lasprilla v. Ashcroft, 365 F.3d 98 (1st Cir. 2004), and finding
“that in order for a visa petition to be ‘approvable when filed’ in this context, there must be a
showing that the marriage on which it is based was bona fide”).
Plaintiffs contend that this Court has subject matter jurisdiction over the denial of Singh’s
I-485 Application and may grant relief under the APA. (Compl. ¶¶ 4-6.) Defendants, on the
3
Section 204 governs petitions for an adjustment of status for spouses, which includes the Alien Relative Petition
filed by Whiting. See 8 C.F.R. § 204.2(a).
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other hand, maintain that section 1252(a)(2)(B) of the INA deprives the Court of jurisdiction.
(Defs.’ Mem. in Supp. at 7-10.) Under the APA, “[a] person suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. The APA tempers this
general right of review, however, by providing that “[n]othing herein (1) affects other limitations
on judicial review or the power or duty of the court to dismiss any action or deny relief on any
other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other
statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” Id.
In this regard, section 1252(a)(2)(B) of the INA states:
Notwithstanding any other provision of law (statutory or nonstatutory) . . . and
regardless of whether the judgment, decision, or action is made in removal
proceedings, no court shall have jurisdiction to review . . . (i) any judgment
regarding the granting of relief under section . . . 1255 of this title, or (ii) any
other 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 . . . .
Id. The INA further provides that “nothing . . . which limits or eliminates judicial review, shall
be construed as precluding review of constitutional claims or questions of law raised upon a
petition for review filed with an appropriate court of appeals in accordance with this section.”
Id. at § 1252(a)(2)(D).
Thus, while federal law recognizes a “strong presumption in favor of judicial review of
administrative action,” INS v. St. Cyr, 533 U.S. 289, 298 (2001), it is clear that the right of
action granted in section 702 of the APA is limited by the jurisdiction-stripping provision of
section 1252(a)(2)(B) of the INA. Cf. Sharkey, 541 F.3d 75, 84-85. Therefore, plaintiffs can
obtain review of the USCIS’s denial of Singh’s application only if that action was outside the
ambit of section 1252(a)(2)(B) or within the exclusion of section 1252(a)(2)(D).
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Here, plaintiffs seek relief from a judgment denying relief under section 1255, which
governs the adjustment of status of a nonimmigrant to that of a person admitted for permanent
residence. See 8 U.S.C. § 1255. The complaint does not allege “constitutional claims or
questions of law” in a petition filed in the Court of Appeals.4 Accordingly, whether judicial
review of the USCIS’s denial of Singh’s application is available in this Court turns on whether
that denial was an exercise of discretionary authority.
In Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir. 2005), the Second Circuit held that
“consistent with the decisions of other circuits . . . § 1252(a)(2)(B) does not bar judicial review
of nondiscretionary, or purely legal, decisions . . . .” Id. at 63. And in their opposition to the
instant motion, plaintiffs urge that this Court need decide only a purely legal decision: that is,
“[w]hether Mr. Singh must establish . . . the bona fides of his marriage at the time of its
inception, or whether he must show that the marriage never deteriorated and that he remained
faithful throughout is an issue of law and not an issue of discretion.” (Pls.’ Mem. in Opp. at 5.)
However, plaintiffs’ argument is wholly belied by the claims pled and the relief sought in this
action.
Plaintiffs complaint asks this Court to “review the USCIS decision” and seeks injunctive
relief mandating that the USCIS “be enjoined from denying the application filed by [Singh]” and
“approve [plaintiffs’] applications for adjustment of status.” (Compl. at 9.) Plaintiffs’ prayer for
relief also asks this Court to “[d]eclare that Plaintiff Harjinder Singh is statutorily eligible for
adjustment of status.” (Id.) These requests are clear attempts to undermine discretionary agency
4
Plaintiffs cite Cruz-Miguel v. Holder, 650 F.3d 189, 193 (2d Cir. 2011), for the proposition that “[t]his court retains
jurisdiction to review ‘constitutional claims or questions of law raised upon a petition for review’ . . . .” (Compl. ¶
26.) This is a blatant misreading of section 1252(a)(2)(D). “Even assuming . . . that [the] complaint actually []
raise[s] ‘constitutional claims or questions of law,’ [that] argument ignores the statute’s requirement that any such
claims must be raised ‘upon a petition for review filed with an appropriate court of appeals.’” Shabaj v. Holder,
704 F.3d 234, 238 (2d Cir. 2013) (emphasis in original). Therefore, while the Court of Appeals may have
jurisdiction to review constitutional claims or questions of law under section 1252(a)(2)(D), this court does not. Id.
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determinations. Since the USCIS accepted and considered Singh’s application (see id. ¶¶ 14-22),
there is no question that he was found eligible to apply for an adjustment.5 The declaration
plaintiffs actually seek is that Singh met the statutory requirements. (See id. at 9.) In short,
plaintiffs ask this Court to review and alter the USCIS’s determination that Singh failed
adequately to prove the bona fides of his marriage. Under the INA, a petitioner must “establish
by clear and convincing evidence that the prior marriage was not entered into for the purpose of
evading the immigration laws.” 8 C.F.R. § 204.2(a)(1)(i)(C). Thus, to accord the relief
requested by plaintiffs this Court would be required to determine “whether the [USCIS’s]
decision was correct or a proper exercise of discretion.” Sharkey, 541 F.3d at 85. Such a
determination is squarely within the prohibition of section 1252(a)(2)(B). See Sharkey, 541 F.3d
75, 84-85; cf. Ansah v. Napolitano, No. 12-CIV-5205 (PKC), 2013 WL 247984, at *2 (S.D.N.Y.
Jan. 23, 2013).
CONCLUSION
For the forgoing reasons, this Court lacks jurisdiction to review the denial of Singh’s
Application for an Adjustment of Status. Accordingly, defendant’s motion to dismiss (Doc. No.
12) is GRANTED.
The Clerk of Court is directed to dismiss this action, and to close this case.
SO ORDERED.
Roslynn R. Mauskopf
Dated: Brooklyn, New York
June 24, 2013
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____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge
As noted above, the USCIS also granted a motion to reopen and reconsider Singh’s case.
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