Opinion
00 Civ. 7542 (RCC)
December 13, 2001
Opinion and Order
Plaintiff Koray Yilmaz ("Plaintiff") brings suit pursuant to Title 8 of the United States Code Section 1329 ("Section 1329"), Title 28 of the United States Code Sections 1331 ("Section 1331"), 1361 ("Section 1361"), and 2412 ("Section 2412"), and Title 5 of the United States Code Sections 701 ("Section 701") and 504 ("Section 504") against defendant Edward J. McElroy ("Defendant"), the New York District Director of the United States Immigration and Naturalization Service ("INS"), seeking to compel Defendant to act on his application for lawful permanent residence. Defendant has brought a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons set forth below, Defendant's motion is GRANTED.
Background
Plaintiff has set forth the following facts in his complaint and Defendant has adopted them for the purposes of his motion to dismiss. Plaintiff is a citizen and national of Turkey, currently living in New Jersey. Comp. ¶¶ 1, 4. Plaintiff entered the United States on June 8, 1998 and applied to the INS to become a lawful, permanent resident of the United States on October 15, 1998. Id. at ¶ 9. Plaintiff claims that his wife, Connie Yilmaz, is a citizen of the United States, and that he was eligible for a status adjustment because he is an immediate relative of a citizen for immigrant visa purposes. Id. at ¶ 3; Def. Mem. in Support at 1. Following a status interview on his candidacy for citizenship, held on September 15, 1999, Plaintiff claims that he was informed that his wife's petition was approved, however, his immigration status could not be adjusted until the INS received notification from the Central Intelligence Agency ("CIA") that it had completed its background investigation of him. Comp. ¶ 11.
On November 24, 1999, Michael A. Pearson, the Executive Associate Commissioner of the INS issued an internal policy memorandum (the "Memorandum") which authorized INS District Directors, in certain circumstances and, in part, due to delays in the CIA's investigation of adjustment applicants, to adjudicate certain adjustment applications before receiving such notification from the CIA. Id. at ¶ 13-16. The Memorandum still required INS district offices to submit the names of applicants to the CIA, and advised that the INS's National Security Unit should review periodic reports from the CIA for information that may affect pending applications, and to communicate such information to the local INS office that processed the relevant applications. Memorandum, Addendum A to Def. Mem., at 1780. The Memorandum left the decision of whether to follow the new procedures to the discretion of the local INS offices, permitting the local INS offices to commence final adjudication where the applicant's name has been forwarded to the CIA, the National Security Unit has not contacted the INS officer regarding the applicant, and the case is otherwise ready for adjudication. Id. at 1782.
In light of this Memorandum and using such Memorandum as support, Plaintiff submitted two letters to the INS, dated January 4, 2000 and March 28, 2000, requesting action on his application. Comp. ¶ 17. Plaintiff's visa expired on January 5, 2000. On October 5, 2000, Plaintiff filed the instant action, seeking an Order of the Court compelling the INS to adjudicate his adjustment application within thirty days or, alternatively, to deem his application approved. Defendant moves to dismiss Plaintiff's complaint, arguing that (1) this Court does not have jurisdiction; and (2) Plaintiff has failed to state a cause of action for which relief can be granted.
Standard
In order for a party to succeed on a motion to dismiss under Rule 12(b)(6), it must be clear that the non-moving party can prove no set of facts that would establish his or her claim for relief. Conley v. Gibson, 355 U.S. 41, 45-46(1957); Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994). When making a determination of whether a non-moving party can prove any set of facts which would entitle him or her to relief, a court must assume that the allegations of the non-moving party are true and draw all reasonable inferences in the such party's favor. Cooper v. Pate, 378 U.S. 546, 546(1964); Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir. 1995). Vague and conclusory allegations, however, are not sufficient to withstand a motion to dismiss. A complaint or counterclaim must "contain allegations concerning each of the material elements necessary to sustain recovery under a viable legal theory."American Council of Learned Societies v. MacMillan, Inc., 1996 WL 706911, at *3 (S.D.N.Y. Dec. 6, 1996).
Rule 12(b)(1) provides for the dismissal of a claim when the federal court lacks jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). In most cases, the court will consider a 12(b)(1) motion before ruling on any other motions to dismiss, since dismissal of an action for lack of subject matter jurisdiction will render all other accompanying defenses and motions moot. See United States ex rel Kreindler Kreindler v. United Techs. Corp., 985 F.2d 1148, 1155-56 (2d Cir. 1993), cert. denied sub nom. Kreindler Kreindler v. United Techs. Corp. 508 U.S. 973(1993); see also Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990). Accordingly, a court confronted with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6) must decide the jurisdictional question first because "a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction." Magee v. Nassau County Medical Center, 27 F. Supp.2d 154, 158 (E.D.N.Y. 1998); see Rhulen, 896 F.2d at 678.
In considering a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a court must assume as true factual allegations of the non-moving party. Shipping Financial Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974));Serrano v. 900 5th Ave. Corp., 4 F. Supp.2d 315, 316 (S.D.N.Y. 1998). Where jurisdictional issues are in dispute, the court may look to "evidence outside the pleadings, such as affidavits." Filetech S.A. v. France Telecom, S.A., 157 F.3d 922, 932 (2d Cir. 1998) (citation omitted). Accordingly, the Court will rule on Defendant's Rule 12(b)(1) motion first.
Discussion
Plaintiff claims that the Court has jurisdiction over the instant action pursuant to Sections 1329, 1331, 1361, 701 and 504. Plaintiff's reliance on these statutes is misplaced.
Matters which are solely within the INS's discretion, such as the issue is in the instant action, are not reviewable under the Administrative Procedure Act ("APA"), codified at Sections 701, et seq., or Section 1361. Wan Shih Hsieh v. Kiley, et al., 569 F.2d 1179, 1182 (2d Cir. 1978) (citations omitted) (declining to compel INS action), cert. denied, 439 U.S. 828(1978); Batista v. U.S. Immigration and Naturalization Service. et al., No. 99 Civ. 2847, 2000 WL 204535, at *3 (S.D.N.Y. Feb. 22, 2000) ("the APA does not furnish an independent basis for subject matter jurisdiction. . . ."). The APA exempts from judicial review any agency action that is committed to agency discretion by law. 5 U.S.C. § 701(a)(2). Title 8 of the United States Code, Section 1255(a) specifically provides that the adjustment of immigration status is in the discretion of, and under the regulations proscribed by, the Attorney General. 8 U.S.C. § 1255(a). Accordingly, the Court does not have the power to review the instant action under the APA.
Section 1361, the mandamus statute, is an extraordinary measure which should be granted sparingly. See In re Repetitive Stress Injury Litigation, 11 F.3d 368, 373 (2d Cir. 1993) (citations omitted), and confers jurisdiction on the federal courts in an action "to compel an officer or employee of the United States or agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. However, the Immigration and Nationality Act of 1952, as amended, does not obligate the Attorney General or the INS to act on an application to adjust immigration status, or to act within any specified time frame. 8 U.S.C. § 1255(a) (adjustment of immigration status by Attorney General is discretionary); Kupferberg v. United States Immigration and Naturalization Service, et al., No. 99 Civ. 0507, 1999 WL 1627350, *1 (S.D.N.Y. July 7, 1999); Alomari v. Reno, No. 97 Civ. 6837, 1997 WL 724815, *2 (S.D.N Y Nov. 19, 1997). The issuance of a writ of mandamus requires the existence of a clear, non-discretionary duty. Sadowski v. United States Immigration and Naturalization Service, et al., 107 F. Supp.2d 451, 453 (S.D.N.Y. 2000). No such obligation exists in this case, however. Accordingly, the Court does not have jurisdiction under Section 1361.
Section 1331 jurisdiction may be exercised over a claim if the claim turns on an interpretation of the laws or Constitution of the United States and the claim is not "patently without merit." Bell v. Hood, 327 U.S. 678, 683(1946). Although Plaintiff claims in his complaint the INS has deprived him of "rights, obligations, and privileges," Comp. ¶ 22, an alien does not have any inherent property interest or rights with respect to his immigration status. See Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990) (citation omitted); Batista, 2000 WL 204535, at *3. Furthermore, Section 1331's grant of original jurisdiction to the federal courts does not deprive Congress of the power to preclude judicial review of particular agency determinations. Here, Section 1361 precludes judicial review of such matters, as they are solely within the discretion of the INS." Sadowski, 107 F. Supp. 2d at 453. Accordingly, the Court does not have jurisdiction under Section 1331.
Section 1329, which provides that "[n]othing in this section shall be construed as providing jurisdiction for suits against the United States or its agencies or officers," is not applicable. 8 U.S.C. § 1329; see Batista, 2000 WL 204535, *3; Sadowski, 107 F. Supp. at 453-54; Cordoba v. McElroy, 78 F. Supp.2d 240, 242 (S.D.N.Y. 2000) ("contention that jurisdiction lies under [Section 1329] is entirely frivolous").
Conclusion
The Court finds that it does not have subject matter jurisdiction over this action. Accordingly, Defendant's motion to dismiss Plaintiff's complaint for lack of subject matter jurisdiction is granted. The Complaint is hereby DISMISSED WITH PREJUDICE. The Clerk of the Court is hereby directed to remove the case from the Court's active docket.
SO ORDERED: