Lavin v. US Citizenship and Immigration Services
MEMORANDUM DECISION AND ORDER adopting 24 Report and Recommendations re: 10 Motion to Dismiss filed by US Citizenship and Immigration Services: Magistrate Judge Netburn's Report is ADOPTED. Defendant's motion to dismiss (ECF No. 10) is GRANTED. The Clerk of Court is directed to close the motion and this case. (Signed by Judge George B. Daniels on 4/13/2018) (jwh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ALBERT LA VIN,
-against17 Civ. 6503 (GBD) (SN)
U.S. CITIZENSHIP AND IMMIGRATION
GEORGE B. DANIELS, United States District Judge:
Plaintiff Albert Lavin, pro se, seeks a writ of mandamus compelling Defendant U.S.
Citizenship and Immigration Services ("USCIS") to process the I-130 petition that Plaintiff filed
on behalf of his daughter, a citizen of the Dominican Republic. 1 (See Compl., ECF No. 2.) On
November 14, 2017, Defendant filed a motion to dismiss Plaintiffs Complaint for lack of subjectmatter jurisdiction and for failure to state a claim pursuant to Rules 12(b)(1) and 12(b)( 6) of the
Federal Rules of Civil Procedure. (ECF No. 10.) Before this Court is Magistrate Judge Sarah
Netburn's March 5, 2018 Report and Recommendation, (the "Report," ECF No. 24),
recommending that Defendant's motion to dismiss be granted. 2
(Id. at 6.)
In the Report,
Magistrate Judge Netburn advised the parties that failure to file timely objections to the Report
would constitute a waiver of those objections on appeal. (Id. at 6-7.) No objections have been
A United States citizen whose relative wishes to immigrate to the United States may file an "Immigration
Form 1-130 petition, which asks the government to recognize an alien as 'an immediate relative' of a United
States citizen." Silva v. US. Citizenship & Immigration Servs., No. 13 Civ. 8920 (VB), 2015 WL 2330304,
at* 1 (S.D.N.Y. Mar. 26, 2015). If the petition is granted, "the immigrant may then apply for an immigrant
The relevant procedural and factual background is set forth in greater detail in the Report, and is
filed. Having reviewed the Report for clear error and finding none, this Court ADOPTS the Report
in full. Defendant's motion to dismiss is GRANTED.
A. Report and Recommendations
A court "may accept, reject, or modify, in whole or in part, the findings or
recommendations" set forth within a magistrate judge's report. 28 U.S.C. § 636(b)(l)(C). The
court must review de nova the portions of a magistrate judge's report to which a party properly
objects. Id. Portions of a magistrate judge's report to which no or "merely perfunctory" objections
are made are reviewed for clear error. See Edwards v. Fischer, 414 F. Supp. 2d 342, 346--47
(S.D.N.Y. 2006) (citation omitted). Clear error is present only when "upon review of the entire
record, [the court is] left with the definite and firm conviction that a mistake has been committed."
United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (citation omitted).
B. Rule 12(b)
"A district court must dismiss a cause of action under Rule 12(b)(1) for lack of subject
matter jurisdiction when it 'lacks the statutory or constitutional power to adjudicate [the claim]."'
Cresci v. Mohawk Valley Cmty. Coll., 693 F. App'x 21, 23 (2d Cir. 2017). "When a case becomes
moot, the federal courts lack subject matter jurisdiction over the action." Schaejjler v. United
States, 696 F. App'x 542, 543 (2d Cir. 2017) (quoting Fox v. Bd. of Trustees, 42 F.3d 135, 140 (2d
Cir. 1994)). "In the immigration and naturalization context, courts have dismissed cases as moot
where the agency, such as USC IS, to which the plaintiff has applied provides the relief sought in
the complaint prior to the court's adjudication." Jinbin Wu v. Johnson, No. 16 Civ. 4523 (KAM),
2018 WL 1115215, at *4 (E.D.N.Y. Feb. 27, 2018); see also Liv. Napolitano, No. 08 Civ. 7353
(JGK), 2009 WL 2358621, at *3 (S.D.N.Y. July 30, 2009) (same).
PLAINTIFF'S CLAIM IS MOOT
Plaintiff alleges that he filed 1-130 petitions on behalf of his wife and daughter, who are
citizens of the Dominican Republic, in 2015. (Compl. at 5.) His wife's petition was granted, and
she was eventually able to immigrate to the United States. (Id. at 5-6.) However, his daughter's
petition was not decided, and Plaintiff alleges that USCIS "los[t]" the petition. (Id. at 6.) On June
20, 2017, Plaintiff filed a new petition on behalf of his daughter. (Id. at 11.) On October 11, 2017,
USCIS approved Plaintiffs daughter's petition. (Declaration of Nelsy De La Nuez, ECF No. 12,
12 & Ex.
1.) As the Report notes, Plaintiff's complaint states that the relief he is seeking is for
his "dau[g]hter['s] papers to go forward." (Compl. at 6.) Thus, the Report correctly found that
Plaintiff's complaint is moot. (Report at 5.)
AMENDMENT WOULD BE FUTILE
In February 2018, after the 1-130 petition Plaintiff submitted on his daughter's behalf was
granted, Plaintiff filed a visa application on her behalf. (Notice of Motion for Emergency Relief
("Emergency Relief Mot."), ECF No. 19, at 2 (attaching confirmation of visa application).) In
opposition to Defendant's motion to dismiss, Plaintiff seeks "Emerge[n]cy Relief1] re[garding a]
visa" for his daughter. 3 (See Notice of Motion to Review Documents, ECF No. 16, at 3. 4 ) Plaintiff
asks that the filing fee associated with his daughter's visa application be waived. (Id. at 4.) As
As the Report notes, on February 8, 2018, Plaintiff filed a separate motion for emergency relief seeking
to expedite the approval of his daughter's visa application. (Report at 3 n.2; see also Emergency Relief
Mot., ECF No. 19.) The Government opposed the motion. (See Letter from Nelsy De La Nuez, Asst. U.S.
Att'y, to Hon. Sarah Netburn, (Feb. 14, 2018), ECF No. 20.) Magistrate Judge Netburn denied that motion
by an order dated February 14, 2018. (ECF No. 21.) On February 15, 2018, Plaintiff submitted an
additional letter to this Court reiterating his request that his daughter's visa application be expedited. (See
Letter from Plaintiff to Judge George B. Daniels (Feb. 15, 2018), ECF No. 23.)
Though the document submitted by Plaintiff is titled "Notice of Motion," (see Notice of Motion to Review
Documents, ECF No. 16), the Report correctly construed the document as a submission in opposition to
Defendant's motion to dismiss. (See Report at 5.)
the Report notes, the Department of State is responsible for adjudicating visa applications, and the
Department of State is not named as a defendant in this action. (Report at 5 (citing 22 C.F.R.
§ 42.7l(a)); see also Reid, 492 F.2d at 256. The Report correctly found that granting Plaintiff
leave to amend the complaint to add the Department of State as a defendant would be futile,
because this case does not present any extraordinary circumstances that would warrant a grant of
mandamus compelling the Department of State to take any action regarding Plaintiffs daughter's
visa application. (Report at 5-6.) Thus, the Report correctly concluded that Plaintiffs complaint
should be dismissed without leave to amend. (Id. at 7.)
Magistrate Judge Netburn's Report is ADOPTED. Defendant's motion to dismiss (ECF
No. 10) is GRANTED. The Clerk of Court is directed to close the motion and this case.
Dated: New York, New York
April 13, 2018
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