Subeh v. Holder et al

Filing 6

ORDER granting defendants' 4 Motion to Dismiss and dismissing plaintiff's complaint. ***CLERK TO FOLLOW UP. Signed by Hon. David G. Larimer on 10/26/09. (EMA)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _______________________________________________ HANI SUBEH (A46090357),

Plaintiff, DECISION AND ORDER 09-MC-6021L v. ERIC HOLDER, Attorney General of the United States, et al.,

Defendants. ________________________________________________

Plaintiff, Hani Subeh ("Subeh"), filed a complaint and seeks a writ of mandamus against an agency of the United States to adjudicate an Alien Relative Petition filed by Subeh on behalf of his wife and children. The Government has moved to dismiss (Dkt. #4) and plaintiff, by counsel, has responded (Dkt. #5). The Government moves to dismiss on dual grounds. First, because plaintiff has failed to properly serve the summons and complaint as required by FED. R. CIV. P. 4; second, the Government claims that the petition is now moot since the relief requested has been granted. Specifically, by affidavit of Assistant United States Attorney Gail Mitchell, sworn to on October 6, 2009, (Dkt. #4), Subeh's Alien Relative Petition Form-I-130 has in fact now been acted upon by the United States Department of Homeland Security, Citizenship and Immigration Services ("USCIS"). In fact, it appears that Subeh received a favorable ruling and that such had been passed on to the United States

Department of State. It appears that plaintiff and his counsel have received notification of the above. Although it appears that some final paperwork and transmittals may be necessary, it appears from the papers submitted that Subeh has obtained the adjudication that he requested and, therefore, this complaint seeking that relief is moot and, therefore, should be dismissed.

CONCLUSION Defendants' motion to dismiss (Dkt. #4) is granted and plaintiff's complaint is dismissed. IT IS SO ORDERED.

_______________________________________ DAVID G. LARIMER United States District Judge

Dated: Rochester, New York October 26, 2009.

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