Filed WOM on my I-485 name check delay about 3 months ago. Just received AUSA's MTD. She wants to dismiss the case under Rule 12(b)(1) and 12(b)(6).
Rule 12(b)(1) is for lack subject matter jurisdiction over the action, and here in this forum has plenty talk about this.
But for Rule 12(b)(6), she argues:
Plaintiff’s Claim Regarding The Application Fails to State a Claim.
Plaintiff’s claim seeking expedited processing of his application also fail to state a claim. First, he has not shown that he has a constitutionally protected interest in the application. Second, he seeks mandamus relief but has not met the heavy burden of showing that such relief is warranted. See supra p. 10-15.
1. Plaintiff Has No Constitutionally Protected Interest in the Application
Plaintiff does not claim that a statute or regulation compels the processing of the I-485 application in any particular time. His claim is that the failure to process the application by now violates their due process rights. See Complaint at ¶ 29. He cannot show, however, that he has any constitutionally protected interest in the application. Numerous cases have held that an applicant for a visa has no protected interest in the visa. See Legal Assistance for Vietnamese Asylum Seekers v. Department of State, 104 F.3d 1349, 1354 (D.C. Cir. 1997) (“[Plaintiffs] may not assert a Fifth Amendment right in challenging the procedures for granting immigrant visas.”); Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990) (“[Plaintiffs] cannot succeed on their due process challenge because they do not have an inherent property right in an immigrant visa.”); ...
Even if the Court considers the relief Plaintiff ultimately seeks – adjustment of status – it is clear that he has no liberty interest. “[T]he mere approval of a visa petition does not entitle an alien to adjustment of status.” See Scott v. Speer, No. 99-3622, 2000 WL 145338, at *5 (S.D.N.Y. Feb. 7, 2000) (Ex. J). Adjustment of status is committed to the Attorney General’s discretion. See 8 U.S.C. § 1255(a) (“The status of an alien . . . may be adjusted by the Attorney General, in his discretion. . . .”). Where relief is committed to an official’s discretion, no liberty interest exists in that relief. See Aguilera v. Kirkpatrick, 241 F.3d 1286, 1293 (10th Cir. 2001) (“An alien’s “failure to receive discretionary relief does not therefore rise to a constitutionally protected interest.”).
Any idea?
Rule 12(b)(1) is for lack subject matter jurisdiction over the action, and here in this forum has plenty talk about this.
But for Rule 12(b)(6), she argues:
Plaintiff’s Claim Regarding The Application Fails to State a Claim.
Plaintiff’s claim seeking expedited processing of his application also fail to state a claim. First, he has not shown that he has a constitutionally protected interest in the application. Second, he seeks mandamus relief but has not met the heavy burden of showing that such relief is warranted. See supra p. 10-15.
1. Plaintiff Has No Constitutionally Protected Interest in the Application
Plaintiff does not claim that a statute or regulation compels the processing of the I-485 application in any particular time. His claim is that the failure to process the application by now violates their due process rights. See Complaint at ¶ 29. He cannot show, however, that he has any constitutionally protected interest in the application. Numerous cases have held that an applicant for a visa has no protected interest in the visa. See Legal Assistance for Vietnamese Asylum Seekers v. Department of State, 104 F.3d 1349, 1354 (D.C. Cir. 1997) (“[Plaintiffs] may not assert a Fifth Amendment right in challenging the procedures for granting immigrant visas.”); Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990) (“[Plaintiffs] cannot succeed on their due process challenge because they do not have an inherent property right in an immigrant visa.”); ...
Even if the Court considers the relief Plaintiff ultimately seeks – adjustment of status – it is clear that he has no liberty interest. “[T]he mere approval of a visa petition does not entitle an alien to adjustment of status.” See Scott v. Speer, No. 99-3622, 2000 WL 145338, at *5 (S.D.N.Y. Feb. 7, 2000) (Ex. J). Adjustment of status is committed to the Attorney General’s discretion. See 8 U.S.C. § 1255(a) (“The status of an alien . . . may be adjusted by the Attorney General, in his discretion. . . .”). Where relief is committed to an official’s discretion, no liberty interest exists in that relief. See Aguilera v. Kirkpatrick, 241 F.3d 1286, 1293 (10th Cir. 2001) (“An alien’s “failure to receive discretionary relief does not therefore rise to a constitutionally protected interest.”).
Any idea?
Perhaps senior members have an opinion.