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Kaur v. Chertoff

May 31, 2007

AMARJEET KAUR, ET AL., PETITIONERS,
v.
MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

Petitioners Amarjeet Kaur and Baldwinder Singh Malhi ("the petitioners") bring this action against various individuals in their capacities as officials of the United States Citizenship and Immigration Services ("USCIS") and its parent department, the United States Department of Homeland Security ("DHS") (collectively "the respondents"),*fn1 seeking (1) a writ of mandamus compelling the adjudication of the Form I-130 Immigrant Petition for Alien Relative ("I-130 petition") filed by Kaur on Malhi's behalf on April 28, 2001; and (2) a declaratory judgment stating that the USCIS improperly denied the Form I-765 Application for Employment Authorization ("I-765 application") filed by Malhi on April 12, 2005. Amended Petition for a Writ of Mandamus and Declaratory Judgment ("Pet.") at 1-2. Currently before the Court is the respondents' motion to dismiss the petitioners' petition pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.*fn2 Motion to Dismiss the Amended Petition ("Resps.' Mot.") at 1. Specifically, the respondents argue, inter alia, that the petition should be dismissed because (1) under the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101 et seq. (2006), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. 104-208, Div. C, 110 Stat. 3009-546 (1996), and the REAL ID Act of 2005, Pub. L. 109-13, Div. B, 119 Stat. 231 (2005), Congress has precluded district courts from exercising jurisdiction over claims similar to those brought in the petition now before this Court that have been filed by or on behalf of aliens, including petitions for writs of mandamus, Memorandum in Support of Motion to Dismiss the Amended Petition ("Resps.' Mem.") at 16-17 (citing 8 U.S.C. § 1252(g) (2006)); (2) Malhi's failure to voluntarily depart the United States within the timeframe allotted to him statutorily bars him from receiving the relief that he seeks, id. at 5-7 (citing 8 U.S.C. § 1229c(d)(1)(B) (2006)); (3) the petitioners are not entitled to mandamus relief because they have failed to identify any non-discretionary duty owed to them by the respondents, id. at 14-19; and (4) "events subsequent to the filing of the initial [p]etition in this case [have] provided [the] [p]etitioners with their requested relief and ended any live controversy between the parties," id. at 10; see id. at 8-13. For the reasons set forth below, the Court grants the respondents' motion to dismiss.

I. Factual Background

The following facts are undisputed by the petitioners.*fn3 Malhi, an Indian national, entered the United States illegally in October 1996. Pet. ¶ 6 (stating that "Malhi is a native and citizen of India"); Resps.' Mem. at 1 (quoting Brief of Petitioner Balwinder Singh Malhi in Malhi v. Gonzales, No. 04-73440, 2005 WL 2570859, at *2 (9th Cir. Aug. 6, 2005) ("Pet.'s Brief")); see also Pet.'s Brief at *6 (stating that Malhi "entered the United States without inspection near Blaine, Washington, at some point on or after 10/17/96") (citation omitted).*fn4 In February 1998, the Immigration and Naturalization Service ("INS")-the predecessor of respondent USCIS and a component agency of the Department of Justice ("DOJ")-commenced deportation proceedings against Malhi, charging him "as an alien present in the United States without admission or parole."*fn5 Pet.'s Brief at 2; see also Resps.' Mem. at 1. At an initial hearing held before an Immigration Judge ("IJ") in August 1999, Malhi conceded that his status made him subject to removal from the United States, Resps.' Mem. at 1; Pet.'s Brief at *1; Brief of the Attorney General in Malhi v. Gonzales, No. 04-73440, 2005 WL 3508595, at *4 (9th Cir. Sep. 26, 2005) ("Gov't's Brief") (stating that "Malhi admitted the allegations against him[] [and] conceded that he was removable from the United States") (citation omitted), but asserted several defenses against his deportation, see Pet.'s Brief at *1; Gov't's Brief at *4-5. In addition to these defenses, Malhi requested that he be permitted to voluntarily depart the United States in lieu of formal deportation or removal. Resps.' Mem. at 1; Pet.'s Brief at *3; see 8 U.S.C. § 1229c(a)(1) (stating that "[t]he Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense . . . in lieu of being subject to [deportation or removal proceedings] . . . or prior to the completion of such proceedings").

On April 13, 2001, while a hearing on the merits of the INS's removal action remained pending, Malhi married co-petitioner Kaur, who was then a legal permanent resident ("LPR") of the United States.*fn6 Pet. ¶ 10. Kaur then submitted an I-130 petition on Malhi's behalf on April 28, 2001, id. ¶ 11; Resps.' Mem. at 2, seeking classification of Malhi as the spouse of an alien lawfully admitted for permanent residence, see 8 U.S.C. § 1154(a)(1)(B)(i) (2006) (stating that "any alien lawfully admitted for permanent residence claiming that an alien is entitled to a classification by reason of a relationship described in [8 U.S.C. § 1153(a)(2) (2006)] may file a petition with the Attorney General for such classification"). Petition, Exhibit ("Ex.") 4 (April 28, 2001 I-130 Petition) at 2-4. Aliens who are classified as immigrant spouses of LPRs can themselves become eligible for adjustment to LPR status, see 8 U.S.C. §§ 1153(a) (detailing the procedure for the allocation of immigrant visas to qualified relatives of permanent resident aliens); see also 8 U.S.C. § 1255 (2006) (describing the procedure for eligible petitioning aliens to adjust their status to that of aliens lawfully admitted for permanent residence), although they are subject to stringent immigrant visa quotas, both globally and on a country-by-country basis, before their applications for adjustment can be processed, see 8 U.S.C. §§ 1151(a)(1), 1153(a)(2)(A) (2006).*fn7 In addition, and more importantly, alien spouses who, like Malhi, entered the country illegally and without inspection are only eligible to be considered for adjustment to LPR status if their I-130 petition was filed on or before April 30, 2001. 8 U.S.C. § 1255(i)(1)(B)(i) (stating that "an alien physically present in the United States . . . who . . . entered the United States without inspection . . . [and whose I-130 petition was filed] on or before April 30, 2001, . . . may apply to the Attorney General for adjustment of his or her status to that of an [LPR]"); see Pet.'s Brief at *9 (stating that the April 28, 2001 I-130 petition "made [Malhi] eligible to obtain a [v]isa and to apply for adjustment despite . . . the fact of his illegal entry"). Thus, along with the April 2001 I-130 petition, the petitioners also submitted an Application to Register Permanent Resident or Adjust Status ("I-485 application"), seeking the adjustment of Malhi's status from alien to LPR. Pet. ¶ 11; see also Pet., Ex. 4 (Petition for alien husband under [INA] Section 245(i)) at 8-11.

After a March 1, 2002 hearing on the merits of the removal proceedings (and before the INS had acted on the April 2001 I-130 petition), the IJ granted Malhi's request for voluntary departure and denied him relief on all other grounds. Resps.' Mem. at 1; Pet.'s Brief at *4. The Board of Immigration Appeals ("BIA") affirmed the IJ's decision on June 10, 2003, Pet.'s Brief at *5, and Malhi was ultimately directed to report on April 20, 2004, for voluntary departure from the United States, Resps.' Mem. at 1; Pet.'s Brief at *6. However, Malhi failed to comply with the voluntary departure order. Resps.' Mem. at 1; Pet.'s Brief at *9. Rather, he remained in the United States and, on April 21, 2004, moved for the BIA to reopen his removal proceedings on the grounds, inter alia, of ineffective assistance of counsel. Resps.' Mem. at 1-2; Pet.'s Brief at *10-11. The BIA denied this motion to reopen as untimely on June 9, 2004, and Malhi appealed that decision to the United States Court of Appeals for the Ninth Circuit. Resps.' Mem. at 2; Pet.'s Brief at *11.

On October 18, 2004, Malhi filed an I-765 application for an Employment Authorization Document ("EAD"), requesting authorization for employment during the pendency of his I-485 application for an adjustment of his status. Pet. ¶ 14; see also 8 C.F.R. § 274a.12(c)(9) (2007) (stating that "[a]n alien who has filed an application for adjustment of status to [LPR] . . . will not be deemed an 'unauthorized alien' . . . while his . . . properly filed Form I-485 application is pending final adjudication, if the alien has otherwised obtained permission from [the USCIS] . . . to engage in employment"). The USCIS denied Malhi's I-765 application on February 14, 2005, concluding that he was ineligible for employment authorization because "[s]ervice records do not indicate [the existence of] . . . a pending Form I-485 . . . filed with [the agency] . . . prior to or concurrent with the filing of the Form I-765." Pet., Ex. 9 (February 14, 2005 letter from the USCIS to Balwinder Malhi) at 1; see also Pet. ¶ 15. Malhi-along with Kaur, who had become a naturalized United States citizen in September 2004, id. ¶ 13-then filed a second I-485 adjustment application (as well as a second I-130 relative immigrant petition) on February 22, 2005, id. ¶ 16, and a renewed I-765 application for an EAD on April 12, 2005, id. ¶ 18. On June 21, 2005, the USCIS denied Malhi's second I-765 application without prejudice, stating that his I-485 adjustment application "had been administratively closed pending resolution of his removal proceedings," id. ¶ 20, and that he had therefore "failed to establish eligibility for employment authorization under 8 C.F.R. [§§] 274.12(a) or (c)," id., Ex. 14 (August 23, 2005 letter from the USCIS to Balwinder Malhi).

On April 10, 2006, the Ninth Circuit denied, in part, and dismissed, in part, Malhi's petition for review of the BIA's denial of his motion to reopen his removal proceedings. Malhi v. Gonzales, 176 Fed. Appx. 726, 2006 WL 925246 (9th Cir. April 10, 2006), reh'g denied; see Pet. ¶ 21; Resps.' Mem. at 2. In so doing, the Ninth Circuit held, inter alia, that it "lack[ed] jurisdiction over Malhi's contention that he did not receive adequate warnings from the immigration judge concerning the consequences of overstaying his voluntary departure period, as this claim was not exhausted before the BIA." Malhi, 176 Fed. Appx. at 727. Malhi then filed the instant action with this Court on April 26, 2006, seeking to compel "adjudicat[ion] [of] either of Mrs. Kaur's [I-130 petitions]" and requesting a declaratory judgment that Malhi's April 2005 I-765 application for an EAD was wrongfully denied. Original Petition ¶ 26.

On July 10, 2006, the USCIS issued a Notice of Approval of Relative Immigrant Visa Petition regarding Kaur's I-130 petition.*fn8 Resps.' Mem., Ex. 1 ("Notice of Approval"); see also Resps.' Mem. at 2. This Notice stated that Malhi "has been given the appropriate classification" of an alien spouse of a United States citizen. Notice of Approval at 1. It further stated, however, that "[a] review of [Malhi's] service file . . . shows that [he is] in deportation/removal proceedings," and that "[t]herefore any application for permanent resident status filed by [him] may only be considered in those proceedings." Id. at 2; see 8 C.F.R. § 245.2(a)(1) (2007) (stating that "[a]fter an alien . . . is in deportation or removal proceedings, his or her application for adjustment of status . . . shall be made and considered only in those proceedings"). In response to this Notice, the petitioners filed an amended petition with this Court on September 27, 2006.*fn9

See Motion to Amend Petition for Writ of Mandamus at 2 (stating that "the [p]etitioners seek to clarify [their] request for the adjudication of both [I-130] petitions, as the wording may have confused [the] [p]etitioners' actual intent"). In the amended petition, the petitioners revise their prayer for relief to specifically "request that . . . [the] USCIS recognize the filing date of the original [I-130] petition which was received by [the] USCIS on April 30, 2001." Pet. ¶ 27 (emphasis in original).

The respondents moved to dismiss the amended petition on October 20, 2006, arguing, inter alia, that (1) the INA divests district courts of jurisdiction over claims such as those raised by the petitioners, including claims brought under the federal mandamus statute, Resps.' Mem. at 16-17 (citing 8 U.S.C. § 1252(g)); (2) Malhi's failure to voluntarily depart the United States within the allotted time period statutorily bars him from receiving the relief he requests, id. at 5-7 (citing 8 U.S.C. § 1229c(d)(1)(B)); (3) the petitioners are not entitled to mandamus relief because they have failed to identify any non-discretionary duty owed to them by the respondents, id. at 14-19; and (4) "events subsequent to the filing of the initial [p]etition in this case [have] provided [the] [p]etitioners with their requested relief and ended any live controversy between the parties," id. at 10; see id. at 8-13. In response, the petitioners contend that a live controversy exists between the parties because the respondents have refused to recognize the April 2001 filing date of Kaur's first I-130 petition on behalf of Malhi. Pets.' Opp. at 3-5. According to the petitioners, this "failure to adjudicate Mrs. Kaur's original petition has unduly burdened [them,] in that it has affected Mr. Malhi's ability to adjust his immigration status as a beneficiary of the petition." Id. at 4. Similarly, the petitioners assert that mandamus relief is warranted in this situation because the USCIS has unreasonably delayed adjudication of the April 2001 I-130 petition. Id. at 6-8; see id. at 6 (stating that "RESPONDENTS HAVE FAILED TO ACT ON MRS. KAUR'S ORIGINAL PETITION FOR OVER FIVE YEARS") (capitals in original). However, the petitioners' opposition to the motion to dismiss entirely fails to address the respondents' arguments regarding the Courts' alleged lack of jurisdiction under § 1252(g), the purportedly preclusive effect of Malhi's failure to abide by his voluntary departure order, and the assertedly discretionary nature of the action which the petitioners seek to compel.*fn10 See generally Pets.' Opp.

II. Standards of Review

A. Motions to Dismiss Under Rule 12(b)(1)

Once a defendant has moved to dismiss a case pursuant to Rule 12(b)(1), "the plaintiff bears the burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence." Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)) (other citations omitted). "The [C]court, in turn, has an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Abu Ali v. Gonzales, 387 F. Supp. 2d 16, 17 (D.D.C. 2005) (internal quotation marks and citation omitted). A court ruling on a Rule 12(b)(1) motion to dismiss "may consider materials outside the pleadings" to determine whether it has jurisdiction over the underlying claims. Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1254 (D.C. Cir. 2005) (citation omitted); see also Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987) (stating that "[i]n [Rule] 12(b)(1) proceedings, it has been long accepted that the judiciary may make appropriate inquiry beyond the pleadings to satisfy itself on [its] authority to entertain the case") (internal citations and quotation marks omitted). However, where the defendant is challenging the complaint's assertion of jurisdiction as facially invalid, "the court must still accept all of the factual allegations in the complaint as true." Jerome Stevens Pharm., 402 F.3d at 1254 (internal quotation marks and citations ...


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