Lakhani v. United States Citizenship & Immigration Services Vermont Service Center

Filing 11

OPINION AND ORDER granting 6 Motion to Dismiss and denying 4 Petition under 8 U.S.C. 1447 and Motion for Stay of Removal ; denying 7 Motion to Amend; denying as moot 2 Motion to Appoint Counsel. Signed by Judge William K. Sessions III on 7/30/2012. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Alkarim Pirbhai Lakhani,
Petitioner,
v.
U.S. Citizenship and
Immigration Services,
Vermont Service Center,
St. Albans, Vermont,
Respondent.

:
:
:
:
:
:
:
:
:
:
:
:

Case No. 2:11-cv-307

OPINION AND ORDER
(Docs. 2, 4, 6 and 7)
Pro se petitioner Alkarim Pirbhai Lakhani, a native of
Pakistan, petitions the Court pursuant to 8 U.S.C. § 1447(b)
to take jurisdiction over his application for
naturalization.

Lakhani also moves the Court to stay his

removal from the United States.

The government has moved to

dismiss the petition, arguing first that Lakhani does not
have a naturalization application pending.

The government

further argues that the Court lacks jurisdiction because at
the time the petition was filed, Lakhani was being held in
the Western District of New York.

The government’s final

argument is that the petition was not properly served.
the reasons set forth below, the motion to dismiss is
GRANTED and this case is DISMISSED.

For

Factual Background
Lakhani states that on July 23, 2011, he filed a motion
to reopen with the United States Citizenship and Immigration
Service (“USCIS”).

He alleges that USCIS failed to “make

their decision [on the motion to reopen] within the time
frame required,” and that this Court should therefore accept
jurisdiction pursuant to

8 U.S.C. § 1447(b).

Because 8

U.S.C. § 1447 is entitled “Hearings on denials of
applications for naturalization,” the Court interprets the
petition as alleging a pending naturalization application,
and that the motion to reopen pertained to that application.
The government contends that Lakhani does not have a
naturalization application pending.

In support of this

assertion, the government has submitted an affidavit from
Lynn Boudreau, Assistant Center Director at the USCIS
Vermont Service Center.

Boudreau attests that “USCIS has no

record of a pending Motion to Reopen filed by Alkharim
Pirbhai Lakhani.”

(Doc. 8-1 at 1.)

Moreover, “[t]here is

no Application for Naturalization, Form N-400, filed by
Lakhani with USCIS,” and no pending “Form I-485” adjustment
application.

Id.

Boudreau further explains that Lakhani

did file a motion to reopen with respect to an “Application

2

to Register Permanent Resident or Adjust Status” that had
been denied in 2005.

The matter was reopened, and was

denied again in 2008.

Id.

Lakhani also moves the Court to stay his removal from
the United States.

The government reports that Lakhani has

had “several” motions to stay removal denied by the United
States Court of Appeals for the Sixth Circuit.
3.)

(Doc. 6 at

Motions to stay removal were also denied by this Court,

and by the United States Court of Appeals for the Second
Circuit.

See Lakhani v. USCIS, 2011 WL 4715171, at *2 (D.

Vt. Sept. 30, 2011); Lakhani v. USCIS, Case No. 11-4315 (2d
Cir. Apr. 9, 2012) (unpublished order).

On May 8, 2012,

Lakhani was removed from the United States to Pakistan.
Discussion
The government moves to dismiss for lack of subject
matter jurisdiction.

“A case is properly dismissed for lack

of subject matter jurisdiction under Rule 12(b)(1) when the
district court lacks the statutory or constitutional power
to adjudicate it.”

Makarova v. United States, 201 F.3d 110,

113 (2d Cir. 2000) (citing Fed. R. Civ. P. 12(b)(1)); see
also Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 193
(2d Cir. 2003).

In considering a motion to dismiss for lack

3

of subject matter jurisdiction, a district court “must
accept as true all material factual allegations in the
complaint, but [is] not to draw inferences from the
complaint favorable to plaintiffs.”

J.S. ex rel. N.S. v.

Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004)
(citation omitted).

This Court also “may consider

affidavits and other materials beyond the pleadings to
resolve the jurisdictional issue, but [it] may not rely on
conclusory or hearsay statements contained in the
affidavits.”

Id.

(citations omitted).

“The plaintiff

bears the burden of proving subject matter jurisdiction by a
preponderance of the evidence.”

Aurecchione v. Schoolman

Transp. Sys. Inc., 426 F.3d 635, 638 (2d Cir. 2005).
Here, Lakhani asks the Court to take jurisdiction
pursuant to 8 U.S.C. § 1447(b).

Section 1447(b) states that

if USCIS fails to make a determination within 120-days, the
applicant may apply to a federal district court “for a
hearing on the matter.

Such court has jurisdiction over the

matter and may either determine the matter or remand the
matter, with appropriate instructions, to the Service to
determine the matter.”

8 U.S.C. § 1447(b).

For support, he

cites, inter alia, United States v. Hovsepian, 359 F.3d

4

1144, 1159-64 (9th Cir. 2004), in which the Ninth Circuit
held that a district court obtains exclusive jurisdiction
over a naturalization application when USCIS fails to act on
the application within the statutorily-prescribed time
period.
The government submits that no such application is
pending.

Lakhani’s reply memorandum, submitted as a “motion

to amend” (Doc. 7), does not counter the government’s
assertion, and instead presents the Court with additional
case law on the question of district court jurisdiction over
adjustment applications.

With no record of a pending

naturalization or adjustment application, the Court finds
that there is no basis for jurisdiction under 8 U.S.C. §
1447(b).

See Ajlani v. Chertoff, 545 F.3d 229, 240 (2d Cir.

2008) (noting that relief under § 1447(b) is only available
when executive branch fails to make a determination on a
naturalization application).1
Furthermore, Lakhani has not established that this
1

To the extent that Lakhani’s motion to amend (Doc. 7) seeks to
add a claim under the Administrative Procedures Act (“APA”), the Court
finds that without a pending application to review, the requirements
of the APA do not apply. See Top Choice Distributors, Inc. v. U.S.
Postal Serv., 138 F.3d 463, 466 (2d Cir. 1998) (requiring final agency
action prior to judicial review under the APA). The motion to amend
(Doc. 7) is therefore DENIED. See Fulton v. Goord, 591 F.3d 37, 45
(2d Cir. 2009) (holding that court may deny motion to amend “when
amendment would be futile”).

5

Court is the proper venue for his petition.

Under 8 U.S.C.

§ 1447(b), an applicant for naturalization “may apply to the
United States district court for the district in which the
applicant resides for a hearing on the matter.
has jurisdiction over the matter . . . .”
1447(b).

Such court

8 U.S.C. §

When he filed the instant case, Lakhani was being

held in the Western District of New York.

Although a

prisoner’s current location “may not necessarily establish
residence,” Santamaria v. Holder, 2012 WL 566073, at *9
(S.D.N.Y. Feb. 21, 2012), nothing in the record suggests
that he is a resident of Vermont.

See 8 C.F.R. § 316.5

(defining “residence” for purposes of naturalization).
Without evidence of Lakhani’s place of residence, the Court
cannot find that this is “the district in which the
applicant resides,” and thus cannot accept jurisdiction over
his case.

8 U.S.C. § 1447(b).

Finally, with respect to Lakhani’s motion for a stay of
removal, the Court finds that the motion is moot because
Lakhani has since been removed to Pakistan.

See Jean v.

Gonzales, 452 F.3d 392, 395 (5th Cir. 2006); Al Najjar v.
Ashcroft, 273 F.3d 1330, 1338 (11th Cir. 2001).
to stay is therefore DENIED.

6

The motion

Conclusion
For the reasons set forth above, the government’s
motion to dismiss (Doc. 6) is GRANTED, and Lakhani’s
petition under 8 U.S.C. § 1447 (Doc. 4) is DENIED.
Lakhani’s motion to amend his petition (Doc. 7) is also
DENIED.

In light of this dismissal, Lakhani’s motion for

appointment of counsel (Doc. 2) is DENIED as moot.
Dated at Burlington, in the District of Vermont, this
30th day of July, 2012.

/s/ William K. Sessions III
William K. Sessions III
Judge, United States District Court

7