Opinion
20-CV-4597 (MKB)
2022-01-04
Israt JAHAN, Petitioner, v. Timothy HOUGHTON, District Director of the United States Citizenship and Immigration Service, Respondent.
Peter M. Zirbes, Peter M. Zirbes, Esq., P.C., Forest Hills, NY, for Petitioner. Kevin Yim, DOJ-USAO, Brooklyn, NY, for Respondent Michael Borgen.
Peter M. Zirbes, Peter M. Zirbes, Esq., P.C., Forest Hills, NY, for Petitioner.
Kevin Yim, DOJ-USAO, Brooklyn, NY, for Respondent Michael Borgen.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge:
Petitioner Israt Jahan commenced the above-captioned action on September 28, 2020, against Respondent Phyllis A. Coven as New York District Director of the U.S. Citizenship and Immigration Services ("USCIS"), seeking a writ of mandamus directing USCIS to amend Petitioner's birth date on her Certificate of Naturalization. (Verified Pet. ("Pet.") ¶ 1, Docket Entry No. 1.) On September 7, 2021, Respondent requested a pre-motion conference in connection with its anticipated motion to dismiss for lack of subject matter jurisdiction and failure to state a claim pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, respectively, or, in the alternative, for summary judgment pursuant to Rule 56. (Resp't’s Mot. for Pre-Mot. Conf. ("Resp't’s Mot."), Docket Entry No. 12.) On September 14, 2021, Petitioner opposed the motion. (Pet'r’s Letter ("Pet'r’s Opp'n"), Docket Entry No. 13.) On September 24, 2021, the Court advised the parties that, "unless either party objects by [October 1, 2021], the Court will deem their pre-motion conference submissions to be the motion." (Order dated Sept. 24, 2021.) In addition, the Court directed the parties "to submit any additional briefing in letter form on or before [October 8, 2021]." (Id. ) Neither party objected to the Court's Order. Petitioner supplemented her opposition on October 13, 2021, (see Pet'r’s Letter Brief ("Pet'r’s Suppl. Opp'n"), Docket Entry No. 15), and Respondent filed a reply on October 26, 2021, (Resp't’s Reply in Supp. of Resp't’s Mot. ("Resp't’s Reply"), Docket Entry No. 17).
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the caption has been updated to reflect the new District Director.
For the reasons set forth below, the Court grants Respondent's motion and dismisses this action for lack of subject matter jurisdiction.
I. Background
Petitioner entered the United States in June of 1991. (Pet. ¶ 4.) In 2001, Petitioner applied for U.S. citizenship. (Id. ¶ 8.) On February 12, 2002, after being sworn in as a U.S. citizen, Petitioner received her Certificate of Naturalization. (Id. ¶ 13; see also Certificate of Naturalization, annexed to Pet. as Ex. B, Docket Entry No. 1-2.) According to the birth certificate Petitioner possessed at the time she applied to become a U.S. citizen, Petitioner was born on XX/XX/1980, in Bangladesh. (Pet. ¶¶ 5, 7, 9; see also Birth Certificate, annexed to Pet. as Ex. A, Docket Entry No. 1-1.) However, Petitioner later learned that her actual birth date is XX/XX/1986. (Pet. ¶¶ 14, 20; see also Corrected Birth Certificate, annexed to Pet. as Ex. C, Docket Entry No. 1-3.) Therefore, on July 23, 2018, Petitioner petitioned USCIS to correct the birth date on her Certificate of Naturalization. (Pet. ¶ 22.) On October 3, 2018, USCIS denied her request on the grounds that she failed to meet the criteria for correction under 8 C.F.R. § 338.5(a) and (e). (Id. ¶ 23; see also USCIS Decision, annexed to Pet. as Ex. D, Docket Entry No. 1-4.) Petitioner appealed USCIS's decision, (Pet. ¶ 24), and USCIS's Administrative Appeals Office upheld the denial on the same grounds, (id. ¶ 25; see also Appeal Decision 1–2, annexed to Pet. as Ex. E, Docket Entry No. 1-5). Petitioner now requests that the Court direct Respondent "to amend and re-issue a new Certificate of Naturalization" containing Petitioner's "true and accurate date of birth." (Pet. ¶ 28.)
II. Discussion
a. Standard of review
A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure when the court "lacks the statutory or constitutional power to adjudicate it." Huntress v. United States , 810 F. App'x 74, 75 (2d Cir. 2020) (quoting Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) ); Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.a.r.l. , 790 F.3d 411, 416–17 (2d Cir. 2015) (quoting Makarova , 201 F.3d at 113 ); Shabaj v. Holder , 718 F.3d 48, 50 (2d Cir. 2013) (quoting Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir. 2005) ). " ‘[C]ourt[s] must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of [the] plaintiff,’ but ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.’ " Morrison v. Nat'l Austl. Bank Ltd. , 547 F.3d 167, 170 (2d Cir. 2008) (citation omitted) (first quoting Nat. Res. Def. Council v. Johnson , 461 F.3d 164, 171 (2d Cir. 2006) ; and then quoting APWU v. Potter , 343 F.3d 619, 623 (2d Cir. 2003) ), aff'd , 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). Ultimately, "the party asserting subject matter jurisdiction ‘has the burden of proving by a preponderance of the evidence that it exists.’ " Tandon v. Captain's Cove Marina of Bridgeport, Inc. , 752 F.3d 239, 243 (2d Cir. 2014) (quoting Makarova , 201 F.3d at 113 ); see also Suarez v. Mosaic Sales Sols. US Operating Co. , 720 F. App'x 52, 53 (2d Cir. 2018) (citing Morrison , 547 F.3d at 170 ); Clayton v. United States , No. 18-CV-5867, 2020 WL 1545542, at *3 (E.D.N.Y. Mar. 31, 2020) (quoting Tandon , 752 F.3d at 243 ); Fed. Deposit Ins. Corp. v. Bank of N.Y. Mellon , 369 F. Supp. 3d 547, 552 (S.D.N.Y. 2019) (quoting Tandon , 752 F.3d at 243 ).
b. The Court lacks subject matter jurisdiction
The Government argues that (1) the Court lacks subject matter jurisdiction to amend or order USCIS to amend Petitioner's naturalization certificate because it was issued after October 1, 1991, when Congress transferred this authority to the executive branch, (Resp't’s Mot. 1–2), (2) assuming, arguendo , that subject matter jurisdiction exists, the Court should dismiss the Petition for failure to state a claim or, in the alternative, grant summary judgment because USCIS "acted in accordance with its regulations" in denying Petitioner's request and "neither USCIS's decision nor the promulgation of [the relevant regulations] was arbitrary and capricious," (id. at 3; Resp't’s Reply 3), and (3) "service of process was insufficient because [Petitioner] served neither [the USCIS New York City District Office] nor the Attorney General, and she served USCIS at the incorrect address," (Resp't’s Mot. 2 n.3 (citation omitted)).
Petitioner concedes that "under an analysis of the current state of the immigration laws," including "the repeal of 8 C.F.R. [§] 334.16 in 2011, and the simultaneous addition of 8 C.F.R. [§] 338.5(e)," judicial review of USCIS's denial of her application has been "effectively foreclosed," and "the USCIS denial itself has been statutorily mandated." (Pet'r’s Opp'n 1.) Nevertheless, Petitioner cites 28 U.S.C. § 1361 ; the Administrative Procedure Act, 5 U.S.C. § 702 ("APA"); and 28 U.S.C. § 1367 as potential bases for subject matter jurisdiction. (Pet. ¶ 3; see Pet'r’s Opp'n 1.) Petitioner also argues that "summary judgment must be denied as premature as there has been no discovery." (Pet'r’s Opp'n 1; see also Pet'r’s Suppl. Opp'n 1.) Petitioner does not respond to the Government's argument that service of process was insufficient. (See generally Pet'r’s Opp'n; Pet'r’s Suppl. Opp'n.)
Respectively, these statutes provide that (1) "district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff," 28 U.S.C. § 1361 ; (2) "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof," 5 U.S.C. § 702 ; and (3) "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy," 28 U.S.C. § 1367.
i. Lack of subject matter jurisdiction under 28 U.S.C. § 1331
Federal courts are courts of limited jurisdiction and may not hear cases if they lack subject matter jurisdiction over the issues presented. See Lyndonville Sav. Bank & Tr. Co. v. Lussier , 211 F.3d 697, 700–01 (2d Cir. 2000). "In 28 U.S.C. §§ 1331 and 1332(a), Congress granted federal courts jurisdiction over two general types of cases: cases that ‘aris[e] under’ federal law, § 1331, and cases in which the amount in controversy exceeds $75,000 and there is diversity of citizenship among the parties, § 1332(a)." Home Depot U.S.A., Inc. v. Jackson , 587 U.S. ––––, ––––, 139 S. Ct. 1743, 1746, 204 L.Ed.2d 34 (2019). Federal question jurisdiction provides federal courts jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." Bounds v. Pine Belt Mental Health Care Res. , 593 F.3d 209, 215 (2d Cir. 2010) (quoting 28 U.S.C. § 1331 ). A plaintiff properly invokes section 1331 jurisdiction when he or she pleads a colorable claim "arising under" the Constitution or laws of the United States. Id. ; see also Fairfield Cnty. Med. Ass'n v. United Healthcare of New Eng., Inc. , 557 F. App'x 53, 55 (2d Cir. 2014) ("A cause of action ‘arises under’ federal law and thus confers subject matter jurisdiction pursuant to 28 U.S.C. § 1331 ‘when the plaintiff's "well-pleaded complaint" raises an issue of federal law.’ " (quoting New York v. Shinnecock Indian Nation , 686 F.3d 133, 138 (2d Cir. 2012) )).
"Until 1991, courts had ‘[e]xclusive jurisdiction to naturalize persons as citizens of the United States’ " pursuant to 8 U.S.C. § 1421(a). Teng v. Dist. Dir., USCIS , 820 F.3d 1106, 1109 (9th Cir. 2016) (alteration in original) (quoting 8 U.S.C. § 1421(a) (1988) ); McKenzie v. USCIS, Dist. Dir. , 761 F.3d 1149, 1156 (10th Cir. 2014). "Courts also had authority ... ‘to correct, reopen, alter, modify, or vacate [a] judgment or decree naturalizing such person.’ " Teng , 820 F.3d at 1109 (alteration in original) (quoting 8 U.S.C. § 1451(i) ). In the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 ("Immigration Act"), "Congress transferred ‘[t]he sole authority to naturalize persons as citizens of the United States’ from the courts to the executive branch, effective October 1, 1991." Id. (alteration in original) (quoting 8 U.S.C. § 1421(a) ). "As part of these statutory revisions, Congress ... also shifted the power to ‘correct, reopen, alter, modify, or vacate an order naturalizing the person’ from the federal courts to the Attorney General." Id. at 1110 (comparing statutes); McKenzie , 761 F.3d at 1156 ("[W]hen Congress ended the jurisdiction of district courts to naturalize aliens, it necessarily ended the jurisdiction to exercise powers derivative of the power to naturalize, including the power ... to modify naturalization documents."). "Through delegation, the Attorney General's authority over naturalization now is exercised by USCIS." McKenzie , 761 F.3d at 1153 (first citing 8 C.F.R. §§ 2.1, 310.1(b) ; and then citing 6 U.S.C. § 271(b)(2) ). "Nothing in the Immigration Act of 1990 grants [federal courts] jurisdiction to amend an agency-issued certificate of naturalization or to order USCIS to do so." Teng , 820 F.3d at 1110.
The Court lacks subject matter jurisdiction to amend the birth date on Petitioner's naturalization certificate because USCIS issued her certificate in 2002, after Congress transferred this authority to the executive branch on October 1, 1991. See, e.g. , Teng , 820 F.3d at 1107–08 ("[B]ecause federal courts lack subject matter jurisdiction under the Immigration Act of 1990 to modify certificates of naturalization that were issued by an administrative agency, [the court] must deny [the plaintiff's] request [to change her birthday on her naturalization certificate]."); Constant v. USCIS , No. 14-1681, 2015 WL 9946518, at *1 (6th Cir. Aug. 21, 2015) ("Because [the plaintiff] applied for naturalization in 1995, his certificate of naturalization was issued by the USCIS under the authority of the Attorney General. Consequently, the district court correctly determined that it lacked the jurisdictional authority to amend or correct the certificate."); McKenzie , 761 F.3d at 1156 ("[W]hen Congress ended the jurisdiction of district courts to naturalize aliens, it necessarily ended the jurisdiction to exercise powers derivative of the power to naturalize, including the power ... to modify naturalization documents."); (Transcript of Decision 9:14–11:23, Rahman v. Jaddou , No. 21-CV-5372 (E.D.N. Y Nov. 16, 2021), annexed to Resp't’s Notice of Suppl. Authority as Ex. A, Docket Entry No. 18-1 (finding no subject matter jurisdiction to amend or order amendment of birth date on naturalization certificate issued after Immigration Act "transferred the authority to issue certificates of naturalization from the judicial to the executive branch" and dismissing mandamus petition)); In re Azami , No. 21-CV-5025, 2021 WL 4244209, at *1 (W.D. Wash. Sept. 17, 2021) ("[T]he [c]ourt does not have subject matter jurisdiction over [the petitioner's] petition and cannot amend his USCIS-issued naturalization certificate nor order USCIS to do so."); Aleme v. Dep't of Homeland Sec. , No. 19-MC-101, 2019 WL 7284756, at *2 (D. Or. Dec. 27, 2019) ("[The petitioner] naturalized administratively in 1996, after [the Immigration Act of 1990] vested jurisdiction to amend naturalization certificates with the Attorney General. As a result, this [c]ourt lacks jurisdiction to amend [the petitioner's] Certificate of Naturalization." (citation omitted)); In re Brifki , No. 18-CV-2920, 2019 WL 418849, at *1 (D. Minn. Feb. 1, 2019) ("[The petitioner's] Certificate of Naturalization dates from 2008. The Certificate therefore falls outside the scope of this [c]ourt's authority to alter or amend. ... [T]he [c]ourt simply lacks jurisdiction to make the requested change." (citation omitted)); Parveen v. USCIS , No. 17-CV-2575, 2018 WL 1545705, at *2 (S.D. Ind. Mar. 13, 2018) (finding that the plaintiff "failed to satisfy her burden of demonstrating that this [c]ourt has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331" because "[n]othing in the Immigration Act of 1990 grants [this court] jurisdiction to amend an agency-issued certificate of naturalization or to order USCIS to do so" (second alteration in original) (quoting Teng , 820 F.3d at 1110 )), report and recommendation adopted , 2018 WL 1536304 (S.D. Ind. Mar. 29, 2018) ; Mahamud v. Dep't of Homeland Sec. , No. 16-CV-2609, 2017 WL 2684224, at *4 (D. Minn. May 9, 2017) ("Like the courts in McKenzie and Yu–Ling Teng , this [c]ourt is sympathetic to [the] [p]laintiff's plight .... But based on the statutory language and the persuasive reasoning of the ... Courts of Appeals to have considered the issue, the [c]ourt must recommend that the District Court conclude it does not have jurisdiction to [order the Department of Homeland Security to correct the date of birth shown on her naturalization certificate]."), report and recommendation adopted , 2017 WL 2683972 (D. Minn. June 21, 2017) ; Odiye v. USCIS , No. 14-MC-80276, 2015 WL 1300031, at *1 (N.D. Cal. Mar. 18, 2015) ("[N]o statute authorizes courts to amend naturalization certificates issued by the executive branch on or after October 1, 1991.").
ii. Lack of subject matter jurisdiction under the APA
Although Petitioner concedes that "it may technically be correct" that federal courts lack subject matter jurisdiction to amend certificates of naturalization issued after 1991, she argues that courts in this Circuit have "clearly established that a petitioner has the right to seek judicial review [of] an unfavorable, and final decision [of USCIS] ..., as is secured by the language of [the APA]." (Pet'r’s Suppl. Opp'n 1.) The Court finds these cases unpersuasive, for several reasons.
See Nguyen v. U.S. Dep't of Homeland Sec. , No. 06-MC-118, 2007 U.S. Dist. LEXIS 103210, at *1 (N.D.N.Y. July 10, 2007), report and recommendation adopted , 2007 WL 2156649, 2007 U.S. Dist. LEXIS 53855 (N.D.N.Y. July 25, 2007) ; Zhang v. U.S. Dep't of Homeland Sec. , No. 06-MC-122, 2007 U.S. Dist. LEXIS 118221, at *1 (N.D.N.Y. July 10, 2007), report and recommendation adopted , 2007 WL 2156648, 2007 U.S. Dist. LEXIS 53854 (N.D.N.Y. July 25, 2007) ; In re Osman , No. 07-MC-24S, 2007 WL 1480966, at *2 (W.D.N.Y. May 20, 2007) ; In re Hua , No. 07-MC-4S, 2007 WL 1087563, at *1 (W.D.N.Y. Apr. 9, 2007).
First, the courts in the cases Petitioner relies on did not consider whether the Immigration Act had divested them of subject matter jurisdiction to amend the petitioners’ naturalization certificates but rather relied on 8 C.F.R. § 334.16(b) for their authority to do so. However, as discussed above, when the Immigration Act transferred the authority to naturalize citizens from the judiciary to the executive in 1991, it also ended federal courts’ jurisdiction to modify naturalization certificates, and 8 C.F.R. § 334.16(b), which was repealed in 2011, does not provide an independent basis for subject matter jurisdiction. See, e.g. , Teng , 820 F.3d at 1110 n.7, 1111 (explaining that 8 C.F.R. § 334.16(b) "do[es] not create subject matter jurisdiction" and "cannot override the [Immigration Act's] clear designation of exclusive jurisdiction"); McKenzie , 761 F.3d at 1156 ("[W]hen Congress ended the jurisdiction of district courts to naturalize aliens, it necessarily ended the jurisdiction to exercise powers derivative of the power to naturalize, including the power (recognized in, but not conferred by, § 334.16(b) ) to modify naturalization documents." (emphasis added)); see also Constant , 2015 WL 9946518, at *2 (finding that section 334.16(b) "did not provide a jurisdictional basis for judicial review" of petition because it "applied to petitions for naturalization that were filed before ... the Immigration Act of 1990 took effect" and "was repealed in 2011"); Odiye , 2015 WL 1300031, at *2–3 (finding section 334.16(b) inapplicable to action commenced after its repeal).
Section 334.16(b), repealed in 2011, provided, in relevant part:
Whenever an application is made to the court to amend a petition for naturalization after final action thereon has been taken by the court, a copy of the application shall be served upon the district director having administrative jurisdiction over the territory in which the court is located, in the manner and within the time provided by the rules of court in which application is made. No objection shall be made to the amendment of a petition for naturalization after the petitioner for naturalization has been admitted to citizenship if the motion or application is to correct a clerical error arising from oversight or omission.
8 C.F.R. § 334.16(b).
In addition, the APA does not provide an independent basis for subject matter jurisdiction to amend naturalization certificates. See, e.g. , Constant , 2015 WL 9946518, at *2 ("[The plaintiff] summarily asserts that the district court had jurisdiction under the [APA], 5 U.S.C. § 702. However, ... the APA does not provide an independent basis for judicial review in immigration cases." (citing Malineni v. USCIS Detroit Dist. , No. 12-CV-13453, 2013 WL 466204, at *3 (E.D. Mich. Feb. 7, 2013) )); Malineni , 2013 WL 466204, at *3 (finding no subject matter jurisdiction to order modification of birth date on certificate issued in 1998 and rejecting argument that APA provides jurisdiction given Supreme Court holdings "that the APA does not afford federal courts an independent grant of subject matter jurisdiction" and that " ‘[i]mmigration proceedings ... are not governed by the APA’ because ‘Congress intended [that] the provisions of the Immigration and Nationality Act (INA) [apply instead]’ " (alterations in original) (first citing Califano v. Sanders , 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) ; and then quoting Ardestani v. INS , 502 U.S. 129, 133–34, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991) )).
iii. Lack of subject matter jurisdiction under 28 U.S.C. § 1361
The Government argues that Petitioner "is not entitled to mandamus relief because [she] does not have a clear right to the relief sought." (Resp't’s Mot. 3.)
Petitioner asserts that the Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1361. (Pet. ¶ 3.) Petitioner does not offer any arguments in support of this contention or respond to the Government's argument. (See Pet'r’s Opp'n; Pet'r’s Suppl. Opp'n.)
Under the mandamus statute, 28 U.S.C. § 1361, "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." H.M.G. v. Johnson , 599 F. App'x 396, 397 (2d Cir. 2015) (alteration in original) (quoting 28 U.S.C. § 1361 ); Aref v. United States , 452 F.3d 202, 205 (2d Cir. 2006) (per curiam). "In order for the writ to issue, a petitioner is required to ‘prove[ ] that (1) there is a clear right to the relief sought; (2) the Government has a plainly defined and peremptory duty to perform the act in question; and (3) there is no other adequate remedy available.’ " H.M.G. , 599 F. App'x at 397 (quoting Benzman v. Whitman , 523 F.3d 119, 133 (2d Cir. 2008) ); Alharbi v. Miller , 368 F. Supp. 3d 527, 553 (E.D.N.Y. 2019) ("To establish jurisdiction under 28 U.S.C. § 1361, [plaintiffs] must show (1) a clear right to the relief sought; (2) a plainly defined and peremptory duty on the part of defendants to do the act in question; and (3) that there is no other adequate remedy available." (alteration in original) (quoting Khanom v. Kerry , 37 F. Supp. 3d 567, 577 (E.D.N.Y. 2014) )), aff'd in part and dismissed in part , 829 F. App'x 570 (2d Cir. 2020).
The Court lacks subject matter jurisdiction under 28 U.S.C. § 1361 because Plaintiff has not shown that she has a clear right to the relief sought or that USCIS has a plainly defined and peremptory duty to amend the birth date on her naturalization certificate. Pursuant to 8 C.F.R. § 338.5(e), "[t]he correction [of a naturalization certificate] will not be deemed to be justified where the naturalized person later alleges that the name or date of birth which the applicant stated to be his or her correct name or date of birth at the time of naturalization was not in fact his or her name or date of birth at the time of the naturalization." 8 C.F.R. § 338.5(e). Petitioner does not dispute that she provided USCIS with the wrong date of birth at the time of her naturalization, maintaining that she was "completely unaware" until "only recently" that her birth certificate contained an incorrect date of birth. (See Pet. ¶¶ 5, 10, 13–14.) In addition, Petitioner concedes that 8 C.F.R. § 338.5(e) "mandated" USCIS's denial of her application to amend her naturalization certificate. (Pet'r’s Opp'n 1.) Therefore, Petitioner does not have a clear right to, and USCIS does not have a duty to provide her with, a new naturalization certificate with the alleged correct date of birth. See Parveen , 2018 WL 1545705, at *3 (finding that "USCIS does not have a duty to provide [the plaintiff] a new naturalization certificate with the alleged correct date of birth because, as [the plaintiff] does not dispute, [she] provided USCIS with the wrong date of birth during her naturalization process," and therefore "USCIS is forbidden to do so" under 8 C.F.R. § 338.5(e) ); McHugh v. Rubin , 220 F.3d 53, 57–58 (2d Cir. 2000) (finding that the plaintiff was not entitled to a writ of mandamus where the agency was not only under no duty to perform the act requested but was under a duty not to perform the act); see also H.M.G. , 599 F. App'x at 397 (affirming dismissal for lack of subject matter jurisdiction where the petitioners "identified neither a clear right to relief nor a ‘plainly defined and peremptory duty’ on the part of the federal agencies"); Anderson v. Bowen , 881 F.2d 1, 5 (2d Cir. 1989) (affirming dismissal for lack of subject matter jurisdiction where "the challenge does not involve a plainly defined and peremptory" duty).
Although Petitioner also asserts jurisdiction pursuant to 28 U.S.C. § 1367, because Petitioner does not identify any basis for original federal jurisdiction, the Court cannot exercise supplemental jurisdiction under 28 U.S.C. § 1367. See Cohen v. Postal Holdings, LLC , 873 F.3d 394, 399 (2d Cir. 2017) (noting that courts "cannot exercise supplemental jurisdiction unless there is first a proper basis for original federal jurisdiction").
Accordingly, the Court lacks subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331, the APA, and 28 U.S.C. §§ 1361 and 1367.
Because the Court dismisses this action for lack of subject matter jurisdiction, the Court declines to consider the parties’ arguments as to Respondent's motions, in the alternative, to dismiss the Petition for failure to state a claim or grant summary judgment and to dismiss for insufficient service of process.
III. Conclusion
For the reasons stated above, the Court grants Respondent's motion and dismisses this action without prejudice for lack of subject matter jurisdiction.