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Uddin v. Gonzalez

January 20, 2010

MOHAMMAD & ARSHIA UDDIN PLAINTIFFS,
v.
EMILIO GONZALEZ, DIR., BUREAU OF CITIZENSHIP & IMMIGR. SERV., ET AL. DEFENDANTS.



The opinion of the court was delivered by: Anita B. Brody, J.

MEMORANDUM

I. INTRODUCTION

Plaintiffs, Mohammad Uddin and Arshia Uddin, husband and wife, have filed suit against Defendants Emilio Gonzalez, Director of the United States Citizenship and Immigration Services (USCIS), the unnamed Director of the Administrative Appeals Office (AAO) of USCIS, and Karen Fitzgerald, Director of the Philadelphia Office of USCIS (collectively, "the Government").*fn1 The Uddins seek a declaration that the Government has violated a series of constitutional and statutory laws in its handling of their applications for Lawful Permanent Residence status; and an order from this Court that their removal proceedings be canceled, their applications approved, and damages assessed for harms allegedly suffered by the Uddins. The Government moves to dismiss the Uddins' claims for lack of subject matter jurisdiction, on mootness grounds, and for failure to state a claim upon which relief may be granted; or in the alternative, the Government moves for summary judgment. In their Response brief, the Uddins have requested that I deny the Motion to Dismiss and allow them to file an Amended Complaint.*fn2

For the following reasons, the Government's Motion to Dismiss is granted.*fn3

II. LEGAL STANDARDS

A. Rule 12(b)(1)

Federal courts have limited jurisdiction and as a result, "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). The burden is on the plaintiff to prove the existence of jurisdiction. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). "Challenges to subject matter jurisdiction under Rule 12(b)(1) may be 'facial' or 'factual.' Facial attacks, like this one, contest the sufficiency of the pleadings, and the trial court must accept the complaint's allegations as true." Turicentro, S.A. v. Am. Airlines Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002). "Only if it appears to a certainty that the pleader will not be able to assert a colorable claim of subject matter jurisdiction may the complaint be dismissed." Halstead v. Motorcycle Safety Found. Inc., 71 F. Supp. 2d 464, 468 (E.D. Pa. 1999).

B. Rule 12(b)(6)

In deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must "accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff." Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002). A motion to dismiss should be granted under Rule 12(b)(6) if the moving party has established that the plaintiff would not be entitled to relief under any reasonable reading of the complaint. Brown v. Card Serv. Ctr., 464 F.3d 450, 452 (3d Cir. 2006).

III. FACTUAL BACKGROUND*fn4

Mohammad Uddin, a native of Pakistan, entered the United States without inspection in 1984. Just prior to leaving Pakistan, Mr. Uddin earned a Bachelor's (1982) and Master's (1984) Degree in Geography from the University of Karachi. Within the year after his arrival in the United States, Mr. Uddin found employment with Jembro Stores, Inc., as a retail store manager. He remained at that position throughout the relevant time period at issue in this case. On December 29, 1987, despite having never worked as a farmworker in the United States, Mr. Uddin applied for benefits under the Special Agricultural Worker (SAW) amnesty program, established by Congress in the Immigration Reform and Control Act (IRCA) of 1986, see 8 U.S.C. § 1160, to provide alien farmworkers with lawful temporary residence status and eventually lawful permanent residence. McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 483 (1991). As a result of his SAW application, Mr. Uddin was issued three I-688A employment authorization cards, one on the day of his application, one on November 2, 1988, and the last on October 3, 1990. On April 13, 1990, his application was denied. On May 18, 1990, Mr. Uddin appealed the decision but later decided against pursuing the appeal.

Between June 1988 and March 1991, Mr. Uddin traveled abroad, primarily to Pakistan, three times. Each time he returned, he was permitted to re-enter after showing immigration authorities his I-688A employment authorization cards and his Pakistani passport. His last re-entry into the United States occurred on March 30, 1991 at New York's John F. Kennedy International Airport.*fn5

IV. PROCEDURAL HISTORY

The following limited procedural history regarding Mr. Uddin's travails through the U.S. immigration process can be cobbled together from the filings attached to the Uddins' Amended Complaint. On December 3, 1996, Mr. Uddin was taken into custody by U.S. immigration authorities, issued an Order to Show Cause, and told to await notice of a hearing date. Mr. Uddin never received the notice and an Order of Deportation in absentia was entered on May 13, 1997. Mr. Uddin appealed the decision. Although it is unclear what transpired in the interim, by the spring of 2001, Mr. Uddin was in removal proceedings before an Immigration Judge (IJ). On April 9, 2001, the removal proceedings were terminated by the IJ with the consent of the parties in order to permit Mr. Uddin to submit an I-485 application for an adjustment of status to permanent residency pursuant to § 245 of the Immigration and Nationality Act (INA). 8 U.S.C. § 1255(a).*fn6 Later in 2001, Mrs. Uddin also submitted an I-485 application dependent on and derived from Mr. Uddin's application. USCIS officials did not interview the Uddins with regard to their I-485 applications until March 14, 2005. During the interview, Mr. Uddin was asked to explain the discrepancy between his assertion that he had only ever worked for Jembro Stores, Inc. since his arrival in the U.S. in 1984, and his application for and receipt of benefits under the SAW program; such benefits were only available to those who had performed at least 90 days of agricultural work in the U.S. from 1984 to 1986. Ultimately, USCIS was not satisfied with Mr. Uddin's response, and on August 29, 2005 it declared him ineligible for an adjustment of status pursuant to INA § 212(a)(6)(C)(i), see 8 U.S.C. §1182(a)(6)(C)(i), after determining that he had fraudulently obtained immigration benefits under the SAW program.

On September 27, 2005, Mr. Uddin filed with USCIS a Motion to Reconsider the denial of his adjustment application. No action having been taken on his Motion, the Uddins then filed this suit on December 1, 2006. Soon afterward, on January 23, 2007, the parties informed this Court that the Government had agreed to review Mr. Uddin's Motion to Reconsider and re-open his adjustment application as well as Mrs. Uddin's adjustment application. By order of this Court, this case was stayed pending the outcome of the Government's review. Then, in rapid succession, USCIS issued a Notice of Intent to Deny (February 15, 2007), Mr. Uddin filed his timely response (March 19, 2007), and his application was denied again (June 8, 2007).*fn7

On September 6, 2007, the Government initiated removal proceedings against the Uddins and served a Notice to Appear to both. Their case is now ...


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