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Kassem v. Chertoff

March 26, 2009

NAGEEB KASSEM, ET AL., PLAINTIFFS,
v.
MICHAEL CHERTOFF, SECRETARY DEPARTMENT OF HOMELAND SECURITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS PLAINTIFFS' COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CLAIM WITH LEAVE TO AMEND

(Documents #43 & #50)

This is an immigration case brought by plaintiffs Nageeb Kassem ("Nageeb") and his wife Nora Kassem ("Nora"), collectively ("Plaintiffs"). Nora is a United States citizen by birth. Nageeb seeks lawful permanent resident status. Nora's approved Form I-130 petition ("I-130") for an Alien Relative was revoked. Immigration Judge Polly Webber ("Judge Webber") pretermitted Nageeb's Form I-485 adjustment of status to lawful permanent resident application ("I-485") based on Nora's I-130 revocation. Nageeb and Nora seek judicial review of the I-130 revocation and I-485 pretermission.

In the instant motion, Official Capacity Defendants seek to dismiss Plaintiffs' third-amended complaint for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6). Individual Capacity Defendants also seek to dismiss Plaintiffs' third-amended complaint for lack of subject matter jurisdiction under Rule 12(b)(1), lack of personal jurisdiction under Rule 12(b)(2), and for failure to state a claim under Rule 12(b)(6). For the reasons stated below, Official Capacity Defendants' and Individual Capacity Defendants' motions to dismiss Plaintiffs' claims against them is granted with leave to amend.

PROCEDURAL BACKGROUND

On December 31, 2007, Plaintiffs filed a complaint against Secretary for the Department of Homeland Security ("DHS") Michael Chertoff ("Chertoff"), Assistant Secretary for DHS and Bureau of Immigration and Customs Enforcement ("ICE") Julie Myers ("Myers"), Assistant Secretary for DHS and Acting Director of the Bureau of Citizenship and Immigration Services ("USCIS") Jonathan Scharfen ("Scharfen"), USCIS's Fresno Field Office Director Don Riding ("Riding"), ICE's San Francisco District Office Chief Legal Counsel Ronald LeFavre ("LeFavre"), ICE's Fresno Field Office Director Nancy Alcantar ("Alcantar"), United States Attorney General Michael Mukasey ("Mukasey"), Chief Judge of the Executive Office of Immigration Review ("EOIR") David L. Neal ("Chief Judge Neal"), and Judge Webber in their individual and official capacities, and DOES I-IV and DOES V-VIII. Plaintiffs' complaint sought to require DHS to complete Nageeb's background investigation or to require DOJ to adjudicate his I-485. On March 12, 2008, Plaintiffs filed a first-amended complaint. On May 13, 2008, Plaintiffs filed a second-amended complaint.

On July 17, 2008, Plaintiffs filed a third-amended and supplemented complaint for writs of mandamus, writs of prohibition, injunctive relief, and Bivens damages. Plaintiffs' third-amended complaint seeks to compel DHS and USCIS to rescind the revocation of Nora's previously approved I-130 and for EOIR to vacate the order pretermitting Nageeb's application for adjustment of status to that of a lawful permanent resident. The first cause of action requests a writ of mandamus ordering DHS and USCIS to rescind their revocation of Nora's previously approved I-130. The second cause of action requests an injunction compelling DHS and USCIS to rescind their revocation of Nora's I-130 petition. The third cause of action requests a writ of prohibition prohibiting DHS, Department of Justice ("DOJ"), ICE, USCIS, and EOIR from enforcing the I-130 revocation. The fourth cause of action requests a writ of mandamus ordering the completion of his immigration clearance. The fifth cause of action requests a writ of mandamus ordering EOIR to vacate Judge Webber's pretermission order of Nageeb's I-485 petition and complete its adjudication. The sixth cause of action requests a writ of mandamus ordering EOIR to vacate Judge Webber's I-485 pretermission order and complete its adjudication based on an ultra vires grant of power to the DHS. The seventh cause of action requests a writ of prohibition and injunctive relief to prevent EOIR from imposing obligations on Nageeb and to prevent EOIR from relying on Judge Webber's I-485 pretermission order. The eighth cause of action seeks Bivens damages against the Individual Capacity Defendants for various alleged constitutional rights violations.

On August 15, 2008, Official Capacity Defendants filed a motion to dismiss Plaintiffs' claims for lack of subject matter jurisdiction and failure to state a claim.

On September 12, 2008, Plaintiffs filed an opposition to the Official Capacity Defendants' motion.

On September 30, 2008, Individual Capacity Defendants filed a motion to dismiss for lack of subject matter jurisdiction, personal jurisdiction as to certain defendants, and failure to state a claim.

On October 10, 2008, Official Capacity Defendants filed a reply brief.

On October 24, 2008, Plaintiffs filed an opposition to Individual Capacity Defendants' motion.

On November 4, 2008, Individual Capacity Defendants filed a reply brief. The Court took the matter under submission as of November 11, 2008.

FACTUAL ALLEGATIONS

This action concerns a dispute over Nora's I-130 revocation and the pretermissionof Nageeb's I-485 application.

The complaint alleges that in June 1996, Nageeb filed an I-589 application for political asylum. The complaint alleges that on February 27, 2002, EOIR denied Nageeb's asylum application and ordered him removed. The complaint alleges that on or about June 9, 2003, Nora filed a I-130 application seeking to classify Nageeb as her husband and for a determination by the DHS that Nageeb was eligible to immigrate to the United States. The complaint alleges that at the time the I-130 application was filed, Nageeb was in removal proceeding before EOIR. The complaint alleges that on March 21, 2006, DHS approved Nora's I-130 application.

The complaint alleges that Nageeb filed a I-485 application for adjustment of status to that of a lawful permanent resident during the pendency of the removal proceedings. The complaint alleges that in mid-March 2007, Federal Bureau of Investigation ("FBI") agents contended that Nageeb was not divorced from his ex-wife in ...


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