Lakhani v. United States Citizenship & Immigration Services

Filing 7

OPINION AND ORDER granting 5 Motion to Dismiss. This case is DISMISSED without prejudice for lackof subject matter jurisdiction. Signed by Judge William K. Sessions III on 7/23/2013. (law)

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

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Case No. 2:12-CV-95

OPINION AND ORDER
(Doc. 5)
Alkarim Pirbhai Lakhani, proceeding pro se, has
petitioned the Court pursuant to the Administrative
Procedures Act, 5 U.S.C. §§ 701 et seq. (“APA”), to compel
the United States Citizenship and Immigration Service
(“USCIS”) to take action on a motion that is allegedly
pending before it.

This same issue was litigated in a

previous case brought by Lakhani in this Court, and was
dismissed on the basis of an affidavit from USCIS stating
that no such motion is pending.

The government reports that

nothing has changed since that time, and again moves to
dismiss.

The motion is unopposed.

For the reasons set

forth below, the government’s motion to dismiss (Doc. 5) is
GRANTED and this case is DISMISSED.

Factual Background
In December 2011, Lakhani filed a petition in which he
alleged that a “Motion to Reopen” was pending with the
USCIS, but that a decision had not been rendered “within the
time frame required.”

Lakhani v. USCIS, Case No.

2:11-CV-00307 (Doc. 4 at 1.)

The government moved to

dismiss on a number of grounds, including improper venue.
While the government’s motion was pending, Lakhani filed a
motion to amend requesting that the Court allow him to bring
his claim under the APA in order to “compel USCIS to
adjudicate his motion to reopen.”

Id. (Doc. 7 at 6.)

The

government opposed the motion to amend on the ground that
the USCIS had not received any such motion.

The

government’s motion was supported by an affidavit from USCIS
staff.

Id. (Doc. 8-1 at 1.)

In his reply memorandum,

Lakhani did not counter the assertions set forth in the
USCIS affidavit, and specifically, offered no evidence that
he had filed a motion to reopen.
On July 30, 2012, the Court dismissed Lakhani’s
petition for lack of subject matter jurisdiction, explaining
that “with no record of a pending naturalization or
adjustment application, the Court finds that there is no

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basis for jurisdiction under 8 U.S.C. § 1447(b).”
11 at 5.)

Id. (Doc.

The Court also noted that “to the extent that

Lakhani’s motion to amend seeks to add a claim under the
Administrative Procedures Act, the Court finds that without
a pending application to review, the requirements of the APA
do not apply.”

Id. (Doc. 11 at 5 n.1.)

Lakhani’s current petition, docketed on May 9, 2012
(while his first petition was still pending in this Court),
again requests that the Court take jurisdiction pursuant to
the APA and compel the USCIS to adjudicate his “Motion to
Reopen.”

(Doc. 4 at 1.)

Lakhani also asserts

constitutional claims, alleging that by failing to rule on
the “Motion to Reopen,” the USCIS has violated his Fifth
Amendment rights to procedural and substantive due process,
and his Fourteenth Amendment right to equal protection.
The government reports that “nothing has changed since
this Court’s July 30, 2012 Opinion and Order, which
dismissed Lakhani’s previous petition and denied Lakhani’s
motion to amend.”

(Doc. 5 at 1.)

Accordingly, the

government has filed a motion to dismiss.

The government

also notes that Lakhani was removed to Pakistan on May 8,
2012.

Lakhani has acknowledged his removal, but informs the

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Court that he nonetheless wishes to proceed with this
action.

(Doc. 2 at 1.)
Discussion

The government moves to dismiss the petition for lack
of subject matter jurisdiction under Fed. R. Civ. P.
12(b)(1), and for failure to state a claim under Fed. R.
Civ. P. 12(b)(6).

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).

A petitioner asserting subject matter

jurisdiction has the burden of proving that such
jurisdiction exists by a preponderance of the evidence.
at 113.

Id.

Furthermore, because jurisdiction must be shown

affirmatively, courts do not draw inferences from the
pleadings in favor of the petitioner.

See Morrison v. Nat’l

Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008).

In

reviewing subject matter jurisdiction, the Court may look to
matters beyond the pleadings.

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

Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).
Lakhani asserts that jurisdiction is proper under the
APA in conjunction with 28 U.S.C. § 1331.

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Section 1331

confers jurisdiction on the district courts over actions
“arising under” federal law.

28 U.S.C. § 1331.

Accordingly, the authority to hear a case must “arise[]
under” a “right of action” created by the APA.

See 28

U.S.C. § 1331; Bowen v. Massachusetts, 487 U.S. 879, 891
n.16 (1988).1
Here, as in his previous case, Lakhani submits that the
Court has jurisdiction to compel action under the APA.

The

Court presumes that Lakhani is relying on 5 U.S.C. § 555(b),
which states: “With due regard for the convenience and
necessity of the parties or their representatives and within
a reasonable time, each agency shall proceed to conclude a
matter presented to it.”2

The problem here, however, is

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Federal question jurisdiction has also ben held to exist where:
“(1) the claim turns on an interpretation of the laws or Constitution
of the United States and (2) the claim is not ‘patently without
merit.’” Kim v. Ashcroft, 340 F. Supp. 2d 384, 388 (S.D.N.Y. 2004)
(citing Batista v. I.N.S., 2000 WL 204535, at *3 (S.D.N.Y. Feb. 22,
2000)); see also Bell v. Hood, 327 U.S. 678, 683-85 (1946). “The test
for determining whether a claim is ‘patently without merit’ is
‘whether the right claimed is so insubstantial, implausible,
foreclosed by prior decisions of [the Supreme] Court, or otherwise
completely devoid of merit as not to involve a federal controversy.”
Bartolini v. Ashcroft, 226 F. Supp. 2d 350, 354 (D. Conn. 2002)
(alteration in original) (quoting N.Y. Dist. Attorney Investigators
Police Benevolent Ass’n v. Richards, 711 F.2d 8, 10 (2d Cir. 1983)).
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Lakhani may also be asserting his rights under 8 U.S.C. §
1447(b), which states that if the USCIS fails to make a determination
within 120 days, the applicant may petition 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

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that according to the USCIS, no “matter” has been “presented
to it.”

5 U.S.C. § 555(b).

Thus, even accepting as true

Lakhani’s allegation of unlawful delay, there is no “matter”
upon which the Court could command action.

Id.

Lakhani claims that he mailed his “Motion to Reopen”
via certified mail on July 23, 2011, and has attached to his
petition a certified mail receipt addressed to the USCIS and
stamped as received on August 9, 2011.

(Doc. 4-3 at 2.)

has not provided a copy of the alleged motion.

He

The USCIS

has submitted a sworn statement averring that as of April 4,
2012, Lakhani had no pending motion to reopen, and no
pending applications for either naturalization or adjustment
of his status.
1.)

Lakhani, Case No. 2:11-cv-307 (Doc. 8-1 at

As the Court concluded previously, “without a pending

application to review, the requirements of the APA do not
apply.”

Id. (Doc. 11 at 5 n.1).

Similarly, there is no

basis upon which the Court could find a constitutional
violation.

Accordingly, there is no basis for asserting

jurisdiction.
It is Lakhani’s burden to show subject matter

U.S.C. § 1447(b). The Second Circuit has noted that relief under §
1447(b) is only available when the executive branch fails to make a
determination on a naturalization application. See Ajlani v.
Chertoff, 545 F.3d 229, 240 (2d Cir. 2008).

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jurisdiction, and he has failed to do so.

See Aurecchione

v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.
2005). “When a federal court concludes that it lacks subject
matter jurisdiction, the court must dismiss the complaint
entirely.”

Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).

This case is therefore DISMISSED without prejudice for lack
of subject matter jurisdiction.
Dated at Burlington, in the District of Vermont, this
23rd day of July, 2013.
/s/ William K. Sessions III
William K. Sessions III
Judge, United States District Court

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