Shaiban et al v. Cissna et al

Filing 45

ORDER denying as moot 23 Motion to Dismiss for Failure to State a Claim; granting 26 Motion to Amend/Correct. The parties shall submit briefings on the jurisdictional issues in this matter by March 2, 2020. Signed by Chief Judge Frank D. Whitney on 1/30/2020. (ams)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:18-cv-00153-FDW-DCK
SALEH
SHAIBAN
MUTHANA,

and

FATIMA )
)
)
Plaintiffs,
)
)
vs.
)
)
1, Acting Secretary of the )
CHAD F. WOLF
Department
of Homeland
Security; )
DEPARTMENT
OF
HOMELAND )
SECURITY;
and
KENNETH
T. )
2, Acting Director of the U.S. )
CUCCINELLI
Citizenship and Immigration Services,
)
)
Defendants.
)
)

ORDER

THIS MATTER is before the Court on Plaintiffs’ Second Motion to Amend/Correct the
Petition for Declaratory and Injunctive Relief (Doc. No. 26) and Defendants’ Partial Motion to
Dismiss (Doc. No. 23). For the reasons stated in open court during the hearing held on January
30, 2020, the Court GRANTS Plaintiffs’ Second Motion to Amend and DENIES as MOOT
Defendants’ Partial Motion to Dismiss.
The Court further grants the parties until March 2, 2020 to brief the issue of whether this
Court retains subject matter jurisdiction in this action in light of the USCIS denial of Plaintiff
Shaiban’s petition to adjust his status from “asylee” to lawful permanent resident. Specifically,
counsel shall advise the Court why the jurisdictional limits under 5 U.S.C § 701(a)(2) and 8 U.S.C.

1

Acting Secretary Chad F. Wolf is automatically substituted for his predecessor, Acting Secretary Kevin McAleenan,
who resigned on October 11, 2019. See Fed. R. Civ. P. 25(d).
2
Acting Director Kenneth T. Cuccinelli is automatically substituted for his predecessor, Director Cissna, who was
replaced effective June 2, 2019. See Fed. R. Civ. P. 25(d).

1

§ 1252 do not apply now that USCIS has made a final decision on Plaintiffs’ applications. The
Court refers the parties to the Fourth Circuit cases of Lee v. US Citizenship and Immigration
Services, 592 F.3d 612 (4th Cir. 2010) and Roland v. U.S. Citizenship and Immigration Services,
850 F.3d 625 (4th Cir. 2017), both of which inform the Court’s concern that a serious jurisdictional
defect exists in the present case.
IT IS, THEREFORE, ORDERED that Plaintiffs’ Second Motion to Amend/Correct the
Petition for Declaratory and Injunctive Relief (Doc. No. 26) is GRANTED; Defendants’ Partial
Motion to Dismiss (Doc. No. 23) is DENIED as MOOT; and the parties shall submit briefings on
the jurisdictional issues in this matter by March 2, 2020.

Signed: January 30, 2020

2