Diaz et al v. Sessions et al

Filing 39

OPINION: re: 31 MOTION to Dismiss for Lack of Jurisdiction filed by Ron Rosenberg, John Kelly, Leon Rodriguez, Jeff Sessions, Phyllis Coven. Based upon the conclusions set forth above, the USCIS's motion to dismiss the complaint is granted. IT IS SO ORDERED. (Signed by Judge Robert W. Sweet on 2/26/2019) (ama) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- x
JESENIA DIAZ ; FELIX ABREU ,
Plaintiffs,

17 Civ . ~

- against -

OPINION

JEFF SESSI ONS , ATTORNEY GENERAL OF
THE UNITED STATES ; JOHN KELLY ,
SECRETARY OF THE DEPARTMENT OF
HOMELAND SECURITY; UN ITE D STATES
CITIZENSHIP AN DIMMIGRATION SERVICES ;
PHYLLIS COVEN , users NEW YORK DISRICT
DIRECTOR ; LEON RODRIGUEZ , users
DIRECTOR ; RON ROSENBERG ; CHIEF ,
ADMINISTRATIVE APPEALS OF FI CE ,

• ""'l

\•

.

~ - ':

..

Defendants.

- ---- ----------------------------------x
APPEARANCES:

Attorney for Plaintiffs
LAW OFFICE OF SHAHLA KHAN PLLC
1375 Broadway, 3 rd Floor
New Yo rk , NY 10018
By : Shahla Khan , Esq .

Attorneys for Defendants
GEOFFREY S. BERMAN
U. S . Attorney for the S . D.N . Y.
Attorney for United States of America
8 6 Chambers Street , Third Floor
New York , NY 10007
By:
Kirti Vaidya Reddy , Esq.

4H-B
48

Sweet, D.J.

Defendants Jeff Sessions , Attorney General of the
United States ; John Kelly, Secretary of the Depar tment of
Homeland Security ; United States Cit izenship and Immigration
Services ( "U SCIS " ) , Phyllis Coven ,
Director ; Leon Rodriguez ,

users

users

New York District

Director ; and Ron Rosenberg,

Chief Administrative Appeals Office (col lectively, "USCIS"),
have moved pu8rsuant to Rule 12(b) (1) of the Fede ral Rules of
Civi l Pr ocedure to dismiss as moot the complaint of plaintiffs
Jesenia Diaz

("Diaz") and Felix Abreu ( " Abreu")

"Plaintiffs" ) challenging the

users

(collectively

determination of marriage

fraud. Based on the conclus i ons set forth below, the USCIS's
motion is granted , and the complaint dismissed.

Prior Proceedings

On January 28 , 20 1 4 , Diaz filed a visa petition on
behalf of her spouse , Abreu, seeking to classify him as the
spouse of a United States citizen . On September 3 , 3014 ,

users

denied the visa petition, stating that in 19 89 , Abreu had
engaged in a marriage for the purpose of evading the immigration
laws , and pursuant to 8 U. S . C. § 1154 (c) , USCIS was barred from

1

granting him a subsequent v isa petition . On the same date , users
also denied Abreu's application for adjustment of status to a
lawful permanent resident because he did not have an approved
visa petition.

On or about October 3 , 2015 , Diaz appealed users ' s
decision denying her visa petition to the Board of Immigration
Appeals

("BI A"). On February 24 , 2017 , the BIA dismissed Diaz ' s

appeals , uph olding USeIS ' s determination that Abreu was barred
from relief because he had previ ous ly engaged in marriage fraud .

On June 13 , 2017 , Plaintiffs filed the instant action
pursuant to the Administrative Procedure Act , 5 U. S . e.

§§

704 et

seq ., challenging the Februar y 24 , 2017 , decision of the BIA.

On May 3 , 2018, users filed with the Board of
Immigration Appeals a sua sponte motion to reopen and to remand
the proceedings to users. Declaration of Kirti Vaidya Reddy ,
dated June 1, 20 18 (" Reddy Deel ." ) at Ex. A. Plaintiff Diaz did
n ot file an opposition to that request. Reddy Deel ., Ex. B.
Accordingly , on May 24 , 2018 , the BIA remanded the visa petition
proceedings to users "for further consideration and for the
creation of a comp lete and accurate record." Id.

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The instant motion was heard and marked fully
submitted on July 18, 2018 .

The Applicable Standard for Dismissal

"' A case is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b) (1) when the [Court]

lacks

the statutory or constitutional power to adjudicate it. ' "
Luckett v. Bure , 2 90 F . 3d 493 , 496 (2d Cir . 2002)

(quoting

Makarova v . United States , 201 F . 3d 110 , 113 (2d Cir . 2000)) ;
see Empire Trust Co . v. United States , 324 F.2d 507
1 963 )

(2d Cir .

( per cur i am) ; see al so Fed . R . Ci v . P . 12 ( h ) ( 3 )

( " I f the

court determines at any time that it lacks subject - matter
jurisdiction , the court must dismiss the action ." ) . Plaintiffs
carry the burden of establishing that subject - matter
jurisdiction exists over their complaint. See Malik v. Meissner,
82 F.3d 560 , 562 (2d Cir . 1996) ; Makarova , 201 F . 3d at 113 ("A
plaintiff asserting subject matter jurisdiction has the burden
of proving by a preponderance of the evidence that it exists ." ) .
On a motion to dismiss for lack of subject - matter jurisdiction ,
a court assumes as true the factual allegations set forth in the
complaint . See Shipping Financial Servs . Corp. v . Drakos , 140
F.3d 129 , 131

(2d Cir . 1998). The Court , however , may refer to

evidence extrinsic to the pleadings . See Makarova , 20 1 F . 3d at
,.,
.)

113 ; Kamen v. Am. Tel.

& Telegraph Co. , 791 F.2d 1006, 1011 (2d

Cir . 19 8 6) . Cons i deration of extr in sic evidence does not convert
the motion to one for summary judgment pursuant to Rule 56 . See
United States v . Vazquez , 1 45 F.3d 74 , 80

(2d Cir . 1998) .

"The hallmark of a moot case or controve rs y is that
the relief sought can no longer be given or is no longer
needed ." Martin-Trigona v . Shiff , 702 F.2d 380 , 386 (2d Cir .
1983) ; see County of Los Angeles v . Davis , 440 U. S . 625 , 63 1
( 1 979)

(case is moot if "the part i es lack a legally cognizable

interest ip the outcome " )

(internal quotation marks omitted) .

" The inability of the federal judiciary ' to review moot cases
derives from the requirement of Art [i c l e]

III of the

Constitution[ , ] under which the exercise of judicial power
depends upon the exis t ence of a case or controversy .'" DeFunis
v. Odegaard , 416 U.S . 312 , 316 (1974)

(per curiam)

Liner v . Jafco , Inc ., 375 U.S. 30 1, 306 n.3

(quoting

(1964)) . " In order

to satisfy the case - or - controversy requirement , a party must , at
al l stages of the litigation, have an actua l injury which is
likely to be redressed by a favorable judicial dec i s i on ." United
States v . Blackburn , 461 F . 3d 259 , 261

(2d Cir . 2006)

(quoting

United States v . Mercurris , 192 F.3d 290 , 293 (2d Cir . 1999)).

Because the Constitution ' s "case or controversy requirement
subsists through all stages of federal judicial proceedings,

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tria l and appellate ," Van Wie v . Pataki , 267 F.3d 109 , 113 (2d
Cir. 2001)

(citations omitted) , once a case becomes moot , a

federal court is deprived of subject - matter jurisdiction over
the action , see Fox v . Ed . of Trs. of State Univ . of N . Y ., 42
F.3d 135 , 140 (2d Ci r. 1 994) , and the court "' must dismiss the
case ,'" United States v . Blackburn , 46 1 F . 3d at 261 (quoting
United States v . Quattrone , 402 F.3d 304 , 308

See also Spencer v. Kemna , 523 U. S . 1 , 18

(2d Cir . 2005))

(1998)

(" [M ] ootness ,

however it may have come about , simply deprives us of our power
to act ; there is nothing for us to remedy , even if we were
disposed to do so " ) ; Blackburn , 261 F . 3d at 265 (" The importance
of the issue , however , and the temptation to decide it can have
no bearing on our assessment of its justiciability . Were we to
reach the substantive issue today , we would overstep the bounds
of the authority granted us by the federal Constitution ." )
(citation omitted) .

The Complaint is Dismissed

Jurisdiction to adjudicate this matter is lacking for
two reasons. First , the Court l acks jurisdiction because there
is no final agency decision . " The APA explic i tly requ i res that
an agency action be final before a claim i s ripe for review . "
Air Espana v . Brien , 165 F . 3d 148 , 152 (2d Cir . 1999) . The

5

purpose of the finality requirement is " to protect the agencies
from judicial interference until an administrative decision has
been formalized and its effects felt in a concrete why by
challeng i ng parties ." Id.

(quoting Abbott Labs v . Garner , 387

U.S . 136 , 148 - 49 (1967)). Here , because t he agency reopened the
administrative proceeding for further ad j udication , the denial
of Di az ' s visa petition i s no longer fina l, and Diaz ' s APA claim
is no longer cognizable . USCIS is now in the process of
adjudicating the visa pet i tion , and therefore , this Court cannot
provide rel i ef that can provide to Plaint i ff .

Second, the ma t ter before th i s Court is moot . Since
the filing of the complaint , the BIA reopened the matter and
remanded it to USCIS for further processing and a new decision.
As such , the issues presented in this complaint are no longer
"live ." See Powell v . McCormack , 395 U. S . 486 , 496 - 97

(1969)

(" Stated simply , a case becomes moot when the issues presented
are no longer ' live ' or the parties lack a legally cognizable
interest in the outcome ." ) ; see also Murphy v . Hunt , 455 U. S .
478 , 481

(1982)

(2d Cir . 1999)

(same) ; see also In re Kurtzman , 194 F.3d 54 , 58
(mootness may be raised at any stage of the

litigation) . Accordingly , the matter is moot as this Court can
no longer provide the relief requested unt il the administrative
process , which may grant plaintiffs the relief they are seeking
6

here, is completed. See North Carolina v. Rice, 404 U.S . 244,
246 (1971)

(per curiam)

("federal courts are without power to

decide questions that cannot affect the rights of litigants in
the case before them"); Bragger v . Trinity Capital Enter. Corp .,
30 F.3d 14, 16 (2d Cir.1994)

(same); see generally Gutierrez v.

Laird, No . 05-CV-5135, 2008 WL 3413897 , at *1 (E.D.N . Y. Aug.8,
2008)

(dismissing§ 2241 petition seeking credit for time served

as moot where petitioner was released while petition was pending
and "presented no evidence of a continuing or concrete injury
after his release") . Moreover, once a case becomes moot, the
Court lacks jurisdicti on over the action, and it cannot direct
an agency t o take specific action. See Fox v . Board of Trustees
of the State Univ . of NY,

42 F.3d 135 , 140 (2d Cir. 1994 )

(a

federal court is deprived o f subject-matter jurisdi ction over
the action once a case becomes moot).

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Conclusion

Based upon the conc l usions set forth above , t he
USCIS ' s motion to dismiss the complaint is granted .

It is so ordered .

New York, NY
Februa~

, 2019

U.S.D.J.

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