Please help me with OPP (I 485 case)
Dear all,
AUSA filed MTD as following, would you please help me with opp? It would be great help if somebody could post a OPP sample for I485 case. Thank you very much!
DEFENDANTS’ MOTION TO DISMISS
Defendants move pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to
dismiss this action for lack of subject matter jurisdiction.
I. MOTION TO DISMISS STANDARD
Rule 12(b)(1) militates the dismissal of an action over which the court lacks subject
matter jurisdiction. A motion under Rule 12(b)(1) may be decided on any of three bases: (1) the
complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.
Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996); Fleischer v. United
States Department of Veterans Affairs, 955 F. Supp. 731, 733-34 (S.D. Tex. 1997).
A case is properly dismissed for lack of subject matter jurisdiction when the court lacks
the statutory or constitutional power to adjudicate the case. Krim v. pcOrder.Com,Inc., 402 F.3d
489,494(5th Cir.2005). Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss.,143 F.3d
1006 (5th Cir.1998). The burden of establishing subject matter jurisdiction rests with the
plaintiff. See F.R.Civ.Proc, Rule 8(a). Metropolitan Life Ins. Co. v.. Taylor,481 U.S.
58,63(1987) St. Paul Reinsurance Co., Ltd., v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998);
Rodriguez v. Texas Comm’n on the Arts, 199 F.3d 279 (5th Cir. 2000).
II. STATEMENT OF FACTS
For the purposes of this motion, the non-argumentative factual statements made in the
plaintiff in her complaint are accepted as true. See Scheuer v. Rhodes, 416 U.S. 232, 236
(1974). However, her legal statements purportedly establishing subject matter jurisdiction are
for the Court to decide. Williamson v. Tucker, 645 F.2d 404,413(5th Cir. 1981). Plaintiff contends that this Court has jurisdiction pursuant to 28 U.S.C. Section 1331.
III. LEGAL ANALYSIS
a. Plaintiff’s Claims under 28 USC Section 1331
Plaintiff claims that the Court has federal question jurisdiction pursuant to Section 1331 of
Title 28, from the defendants’ interpretation statutes contained in the Immigration and
Nationality Act(INA) committed to them for their administration and enforcement by Congress.
Their decisions about how and in what manner the persons who seek benefits under these
sections are either accepted or denied are entitled to deference absent a demonstrated abuse of
discretion or interpretations or actions which are arbitrary or capricious or otherwise not in
accordance with law. Chevron USA Inc v. Natural Resources Defense Counsel, 467 U.S.
837,(1984), Hamana v. I.N.S. , 78 F. 3d 233,239 (6th Cir. 1996) , Chow v. I.N.S. , 12 F. 3d
233,239(5thCir. 1993).
Plaintiff complains about defendants’ delay in the processing of her I-485 application
to adjust his immigration status which plaintiff believes she is being denied, which is the subject of this action,(“the I- 485"). Plaintiff thus assumes for the purpose of her pleading that not only has she demonstrated her entitlement to the adjustment of her immigratoion status, but also that she is entitled to say when that entitlement has been established . Such an interpretation is not only unsupported by any case authority , but is also entirely antithetical to the idea of immigration control through statute, which is mandated by Article I, Section 8 of the Constitution of the United States. That Constitutional provision establishes the plenary power of Congress to enact laws related to immigration ,and the almost unfettered power of the Executive to enforce those laws in keeping with Congressional intent. Fiallo v Bell ,430 U.S. 787,792 ,97 S.Ct. 1473,1478(1977), Shaughnessy v. U.S. ex. rel. Mezie, 345 U.S. 206,210, 97 S. Ct.. 956 (1953).
Against that is juxtaposed the extremely limited role of the Courts regarding immigration.
See Saavedra-Bruno v. Albright ,197 F. 3d 1153,1158(D.C.Cir,1999)(in which the history of
immigration control is historically recounted ). The Courts do not have the power to grant
citizenship. I.N.S. v. Panigilan, 486 U.S. 875,884, 108 S.Ct. 2210,2216-17(1988). An alien
seeking rights under immigration law can obtain them only upon terms and conditions set by
Congress. Courts are without authority to change or modify immigration law . United States v.
Ginsberg, 243 U.S. 472,474,37 S.Ct. 422(1917). The power to exclude or admit aliens is a
sovereign prerogative. Matthews v. Diaz, 426 U.S. 67,79-80, 96 S.Ct. 1883,1891(1976).
Specifically , in the context of this suit, Title 8 C.F.R. Section 103.2(b)(7) mandates
background and fingerprint checks for all persons seeking to adjust their status under the INA.
Further , 8 U.S.C. Section 1105(a) provides that the Citizenship and Immigration Services
Department(CIS) obtain and exchange information from the FBI and the Central Intelligence
Agency(CIA) “ for use in enforcing the provisions of this chapter in the interest of the internal
and border security of the United States”. Defendants’ operations in this, and other would be
beneficiaries’ immigration adjustment and citizenship applications are part of that nationwide
coordinated effort.
In the context of district court power to review executive branch desions under the INA,
the recently(May 11,2005) amended Title 8 U.S.C. Section 1252(a)(2)(B)(ii) bars court review
of “all discretionary agency decisions” of the Attorney General(Pursuant to the REAL ID Act of
2005). This is only the latest law enacted by the Congress, all of which seek to restrict, if not
foreclose, the role of the Courts in reviewing “discretionary” decisions of the Attorney
General(AG) or the Department of Homeland Security(DHS).
Plaintiff claims without citation to authority that the defendants’ admitted delay in
adjudicating her I-485 gives her the right to proceed with this suit in U.S. District Court. Defendants assert that, although they regret unfortunate
delays which occur in the processing and adjudication of I-485s of the type made the subject of
plaintiff’s complaint, they are operating with all dispatch on the plaintiff’s case, as well as the
many others whose applications are likewise pending. In this context, defendants assert that they
have the right determine how to investgate, administer and adjudicate petitions of the type made
the subject of this suit, as well as all other decisions related to the manner and means of the
naturalization process, which has, since the passage of the first immigration control acts , been
committed to agency discretion . It is in this distinction upon which this motion turns. If the duty
is “discretionary” , then the Court has no subject matter jurisdiction pursuant to Title 8 U.S.C.
Section 1252(a)(2)(B)(i) and (ii). This Court has recently ruled on a similar motion based upon
the provisions of Section 1252 in the case of Eastern Carpet House v DHS , 430 F. Supp. 2d
672 (S.D. Tx., 2006) .
Eastern Carpet holds that use of the word “may” in the context of the decision by the
Attorney General or the DHS to grant, or not, a visa, makes the jurisdiction stripping statute
(Section 1252) applicable in that instance. Eastern Carpet, supra at p. 675. In adjustment of
status cases,the applicable statute , 8 U.S.C. Section 1255, provides that an alien who has been
“inspected and admitted... may be adjusted by the Attorney General , in his discretion and under
such regulations as he may prescibe...”(emphasis added). Under the Eastern Carpet rubric,
judgments regarding the granting of relief under section 1255 are specifically excepted from
judicial review by subsection 1252(a)(2)(b)(i). Ayanbadejo v. Chertoff, 462 F.Supp. 2d 736
(S.D.Tx.,2006) (District Director’s decision to deny plaintiff an adjustment of his immigration
status was not reviewable.)
The adjudication of I-485s , are by the terms of section 1255 discretionary, and hence,
unreviewable. Wan Shih Hsieh v. Kiley, 569 F.2d 1179 (2d Cir., 1979), (Court had no
jurisdiction to compel the INS to complete an investigation concerning a visa application);
Dinsey v. DHS , 2004 WL 1698630(S.D. NY, 2004) (The Court had no jurisdiction to compel
DHS to complete an investigation concerning an adjustment of status application); Mustafa v.
Pasquerell, 2006 WL 488399(W.D.Tx., 1-10-06)(No jurisdiction over delay necessitated by
background check); Mohamed Zahani v. DHS , 2006 WL 2246211,(M.D.Fla, 6-26-06)(same
holding as Mustafa ).
The Attorney General’s decision to adjudicate, or not, the plaintiff’s pending I-485 is
clearly “discretionary” action which plaintiff seeks to mandate through this action. Attached as
Exhibit 1 is a decision of the Southern District of California in the case of Jing Li v. Chertoff,
entered April 2, 2007 , holding that this is precisely the type of “discretionary” decision which
Congress has decided, through its enactment of Section 1252, should not be subject to judicial
review. See also Grinberg v. Swacina , 2007 WL 840109 (S.D.Fla, 3-20-07) (“If Congress had
intended to confer jurisdiction on a federal court to review the pace of adjusdicaytion of status
applications, it would have expressly provided ofor a time limitation in 8 U.S.C. Section 1255(a)
, as it did in 8 U.S.C. Section 1447(b)”.)
This Court is not presented with a situation in which the defendants have failed to act, but
rather one in which they are proceeding in a manner with which plaintiff is dissatisfied. The
plaintiff herself says that she has checked with
various offices of the government to inquire about the status of her application and discovering
that the agency “is curently working” on similar applications filed after hers. While such
anomalys are unfortunate, the FBI works as diligently as possible in an attempt to move these
cases through to completion on a first in-first out basis just as it does in FOIA cases. See
Eastern Carpet , 430 F.Supp 2d at p 676. However, the fact that it is not always successful in
that effort does not establish that this Court has jurisdiction under Section 1331 in such a
situation .
IV. CONCLUSION
These cases underline and support the contention herein, that in a case as plaintiff presents here,
in which her complaint establishes that defendants’ processing of her application to adjust status
is a “discretionary” act which, though she be dissatisfied with the pace at which they are
operating , that this court can have no subject matter jurisdiction.Defendants are carrying out the Congressional mandate, investigating plaintiff’s case along with approximately 6 million others with all deliberate speed. Plaintiffs’ complaint should be dismissed accordingly.
Dear all,
AUSA filed MTD as following, would you please help me with opp? It would be great help if somebody could post a OPP sample for I485 case. Thank you very much!
DEFENDANTS’ MOTION TO DISMISS
Defendants move pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to
dismiss this action for lack of subject matter jurisdiction.
I. MOTION TO DISMISS STANDARD
Rule 12(b)(1) militates the dismissal of an action over which the court lacks subject
matter jurisdiction. A motion under Rule 12(b)(1) may be decided on any of three bases: (1) the
complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.
Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996); Fleischer v. United
States Department of Veterans Affairs, 955 F. Supp. 731, 733-34 (S.D. Tex. 1997).
A case is properly dismissed for lack of subject matter jurisdiction when the court lacks
the statutory or constitutional power to adjudicate the case. Krim v. pcOrder.Com,Inc., 402 F.3d
489,494(5th Cir.2005). Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss.,143 F.3d
1006 (5th Cir.1998). The burden of establishing subject matter jurisdiction rests with the
plaintiff. See F.R.Civ.Proc, Rule 8(a). Metropolitan Life Ins. Co. v.. Taylor,481 U.S.
58,63(1987) St. Paul Reinsurance Co., Ltd., v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998);
Rodriguez v. Texas Comm’n on the Arts, 199 F.3d 279 (5th Cir. 2000).
II. STATEMENT OF FACTS
For the purposes of this motion, the non-argumentative factual statements made in the
plaintiff in her complaint are accepted as true. See Scheuer v. Rhodes, 416 U.S. 232, 236
(1974). However, her legal statements purportedly establishing subject matter jurisdiction are
for the Court to decide. Williamson v. Tucker, 645 F.2d 404,413(5th Cir. 1981). Plaintiff contends that this Court has jurisdiction pursuant to 28 U.S.C. Section 1331.
III. LEGAL ANALYSIS
a. Plaintiff’s Claims under 28 USC Section 1331
Plaintiff claims that the Court has federal question jurisdiction pursuant to Section 1331 of
Title 28, from the defendants’ interpretation statutes contained in the Immigration and
Nationality Act(INA) committed to them for their administration and enforcement by Congress.
Their decisions about how and in what manner the persons who seek benefits under these
sections are either accepted or denied are entitled to deference absent a demonstrated abuse of
discretion or interpretations or actions which are arbitrary or capricious or otherwise not in
accordance with law. Chevron USA Inc v. Natural Resources Defense Counsel, 467 U.S.
837,(1984), Hamana v. I.N.S. , 78 F. 3d 233,239 (6th Cir. 1996) , Chow v. I.N.S. , 12 F. 3d
233,239(5thCir. 1993).
Plaintiff complains about defendants’ delay in the processing of her I-485 application
to adjust his immigration status which plaintiff believes she is being denied, which is the subject of this action,(“the I- 485"). Plaintiff thus assumes for the purpose of her pleading that not only has she demonstrated her entitlement to the adjustment of her immigratoion status, but also that she is entitled to say when that entitlement has been established . Such an interpretation is not only unsupported by any case authority , but is also entirely antithetical to the idea of immigration control through statute, which is mandated by Article I, Section 8 of the Constitution of the United States. That Constitutional provision establishes the plenary power of Congress to enact laws related to immigration ,and the almost unfettered power of the Executive to enforce those laws in keeping with Congressional intent. Fiallo v Bell ,430 U.S. 787,792 ,97 S.Ct. 1473,1478(1977), Shaughnessy v. U.S. ex. rel. Mezie, 345 U.S. 206,210, 97 S. Ct.. 956 (1953).
Against that is juxtaposed the extremely limited role of the Courts regarding immigration.
See Saavedra-Bruno v. Albright ,197 F. 3d 1153,1158(D.C.Cir,1999)(in which the history of
immigration control is historically recounted ). The Courts do not have the power to grant
citizenship. I.N.S. v. Panigilan, 486 U.S. 875,884, 108 S.Ct. 2210,2216-17(1988). An alien
seeking rights under immigration law can obtain them only upon terms and conditions set by
Congress. Courts are without authority to change or modify immigration law . United States v.
Ginsberg, 243 U.S. 472,474,37 S.Ct. 422(1917). The power to exclude or admit aliens is a
sovereign prerogative. Matthews v. Diaz, 426 U.S. 67,79-80, 96 S.Ct. 1883,1891(1976).
Specifically , in the context of this suit, Title 8 C.F.R. Section 103.2(b)(7) mandates
background and fingerprint checks for all persons seeking to adjust their status under the INA.
Further , 8 U.S.C. Section 1105(a) provides that the Citizenship and Immigration Services
Department(CIS) obtain and exchange information from the FBI and the Central Intelligence
Agency(CIA) “ for use in enforcing the provisions of this chapter in the interest of the internal
and border security of the United States”. Defendants’ operations in this, and other would be
beneficiaries’ immigration adjustment and citizenship applications are part of that nationwide
coordinated effort.
In the context of district court power to review executive branch desions under the INA,
the recently(May 11,2005) amended Title 8 U.S.C. Section 1252(a)(2)(B)(ii) bars court review
of “all discretionary agency decisions” of the Attorney General(Pursuant to the REAL ID Act of
2005). This is only the latest law enacted by the Congress, all of which seek to restrict, if not
foreclose, the role of the Courts in reviewing “discretionary” decisions of the Attorney
General(AG) or the Department of Homeland Security(DHS).
Plaintiff claims without citation to authority that the defendants’ admitted delay in
adjudicating her I-485 gives her the right to proceed with this suit in U.S. District Court. Defendants assert that, although they regret unfortunate
delays which occur in the processing and adjudication of I-485s of the type made the subject of
plaintiff’s complaint, they are operating with all dispatch on the plaintiff’s case, as well as the
many others whose applications are likewise pending. In this context, defendants assert that they
have the right determine how to investgate, administer and adjudicate petitions of the type made
the subject of this suit, as well as all other decisions related to the manner and means of the
naturalization process, which has, since the passage of the first immigration control acts , been
committed to agency discretion . It is in this distinction upon which this motion turns. If the duty
is “discretionary” , then the Court has no subject matter jurisdiction pursuant to Title 8 U.S.C.
Section 1252(a)(2)(B)(i) and (ii). This Court has recently ruled on a similar motion based upon
the provisions of Section 1252 in the case of Eastern Carpet House v DHS , 430 F. Supp. 2d
672 (S.D. Tx., 2006) .
Eastern Carpet holds that use of the word “may” in the context of the decision by the
Attorney General or the DHS to grant, or not, a visa, makes the jurisdiction stripping statute
(Section 1252) applicable in that instance. Eastern Carpet, supra at p. 675. In adjustment of
status cases,the applicable statute , 8 U.S.C. Section 1255, provides that an alien who has been
“inspected and admitted... may be adjusted by the Attorney General , in his discretion and under
such regulations as he may prescibe...”(emphasis added). Under the Eastern Carpet rubric,
judgments regarding the granting of relief under section 1255 are specifically excepted from
judicial review by subsection 1252(a)(2)(b)(i). Ayanbadejo v. Chertoff, 462 F.Supp. 2d 736
(S.D.Tx.,2006) (District Director’s decision to deny plaintiff an adjustment of his immigration
status was not reviewable.)
The adjudication of I-485s , are by the terms of section 1255 discretionary, and hence,
unreviewable. Wan Shih Hsieh v. Kiley, 569 F.2d 1179 (2d Cir., 1979), (Court had no
jurisdiction to compel the INS to complete an investigation concerning a visa application);
Dinsey v. DHS , 2004 WL 1698630(S.D. NY, 2004) (The Court had no jurisdiction to compel
DHS to complete an investigation concerning an adjustment of status application); Mustafa v.
Pasquerell, 2006 WL 488399(W.D.Tx., 1-10-06)(No jurisdiction over delay necessitated by
background check); Mohamed Zahani v. DHS , 2006 WL 2246211,(M.D.Fla, 6-26-06)(same
holding as Mustafa ).
The Attorney General’s decision to adjudicate, or not, the plaintiff’s pending I-485 is
clearly “discretionary” action which plaintiff seeks to mandate through this action. Attached as
Exhibit 1 is a decision of the Southern District of California in the case of Jing Li v. Chertoff,
entered April 2, 2007 , holding that this is precisely the type of “discretionary” decision which
Congress has decided, through its enactment of Section 1252, should not be subject to judicial
review. See also Grinberg v. Swacina , 2007 WL 840109 (S.D.Fla, 3-20-07) (“If Congress had
intended to confer jurisdiction on a federal court to review the pace of adjusdicaytion of status
applications, it would have expressly provided ofor a time limitation in 8 U.S.C. Section 1255(a)
, as it did in 8 U.S.C. Section 1447(b)”.)
This Court is not presented with a situation in which the defendants have failed to act, but
rather one in which they are proceeding in a manner with which plaintiff is dissatisfied. The
plaintiff herself says that she has checked with
various offices of the government to inquire about the status of her application and discovering
that the agency “is curently working” on similar applications filed after hers. While such
anomalys are unfortunate, the FBI works as diligently as possible in an attempt to move these
cases through to completion on a first in-first out basis just as it does in FOIA cases. See
Eastern Carpet , 430 F.Supp 2d at p 676. However, the fact that it is not always successful in
that effort does not establish that this Court has jurisdiction under Section 1331 in such a
situation .
IV. CONCLUSION
These cases underline and support the contention herein, that in a case as plaintiff presents here,
in which her complaint establishes that defendants’ processing of her application to adjust status
is a “discretionary” act which, though she be dissatisfied with the pace at which they are
operating , that this court can have no subject matter jurisdiction.Defendants are carrying out the Congressional mandate, investigating plaintiff’s case along with approximately 6 million others with all deliberate speed. Plaintiffs’ complaint should be dismissed accordingly.