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Kassem v. Napolitano

March 29, 2010

NAGEEB KASSEM AND NORA KASSEM PLAINTIFFS,
v.
JANET NAPOLITANO, ET. AL. DEFENDANTS.



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

ORDER GRANTING INDIVIDUAL AND OFFICIAL CAPACITY DEFENDANTS' MOTIONS TO DISMISS PLAINTIFFS' THIRD THROUGH NINTH CLAIMS FOR RELIEF FOR FAILURE TO STATE A CLAIM WITHOUT LEAVE TO AMEND

(Document Nos. 65 & 66)

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 Nora's approved Form I-130 petition ("I-130") for an Alien Relative was revoked.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.

In the instant motion, Official Capacity Defendants, Janet Napolitano ("Napolitano"), John P. Torres ("Torres"), Michael Aytes ("Aytes"), Susan Curda ("Curda"), Don Riding ("Riding"), Timothy Aitken ("Aitken"), Ronald LeFevre ("LeFevre"), Eric Holder ("Holder"), Chief Judge Thomas Snow ("Chief Judge Snow"), and Judge Webber seek to dismiss Plaintiffs' third through eighth claims for relief based on 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, Michael Chertoff ("Chertoff"), Jonathan Scharfen ("Scharfen"), Curda, Riding, and LeFevre seek to dismiss Plaintiffs' ninth claim for relief based on 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' third through ninth claims against them are granted without leave to amend.

PROCEDURAL BACKGROUND

On December 31, 2007, Plaintiffs filed a complaint against the following defendants: Chertoff (Secretary for the Department of Homeland Security ("DHS")); Julie Myers ("Myers") (Assistant Secretary for DHS and Bureau of Immigration and Customs Enforcement ("ICE")); Scharfen (Assistant Secretary for DHS and Acting Director of the Bureau of Citizenship and Immigration Services ("USCIS"))*fn1; Riding (USCIS's Fresno Field Office Director); LeFevre (ICE's San Francisco District Office Chief Legal Counsel); Nancy Alcantar ("Alcantar") (ICE's Fresno Field Office Director); Michael Mukasey ("Mukasey") (United States Attorney General); David L. Neal ("Chief Judge Neal") (Chief Judge of the Executive Office of Immigration Review ("EOIR"))*fn2; 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 the Department of Justice ("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 damages pursuant to Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971) ("Bivens"). Plaintiffs' third-amended complaint sought 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.

On March 27, 2009, the court granted Official Capacity Defendants' and Individual Capacity Defendants' motions to dismiss for lack of subject matter jurisdiction and failure to state a claim with leave to amend.

On May 1, 2009, Plaintiffs filed a fourth-amended complaint ("FAC") against Defendants Napolitano (in her capacity as Secretary for DHS); Torres (in his capacity as Assistant Secretary for Homeland Security for ICE); Aytes (in his capacity of Acting Deputy Director of USCIS); Curda (personally and in her capacity as Director of Sacramento District of USCIS); Riding (personally and in his capacity as Field Office Director for Fresno Field Office of USCIS); Aitken (in his capacity as Field Office Director, San Francisco District of ICE); LeFevre (personally and as Chief Legal Counsel, San Francisco District of ICE/USCIS); Holder (in his capacity as Attorney General and Secretary of DOJ); Snow (in his capacity as Acting Chief Judge of EOIR); Judge Webber (in her capacity as Administrative Law Judge with EOIR); Scharfen (personally as the former Assistant Secretary and Acting Director of the USCIS); Chertoff (personally as the former Secretary for the Department of Homeland Security); Does I through VII; and Does V-VIII.

The FAC alleges the following claims for relief: (1) injunctive relief under the APA, ordering the DHS and USCIS to cancel, rescind, or vacate the unlawful revocation of Nora's previously approved I-130 visa petition; (2) injunctive relief under the APA seeking cancellation of the unconstitutional revocation of the I-130 petition; (3) a writ of mandamus because DHS and USCIS had a non-discretionary duty to rescind the revocation of the non-discretionary approval of the I-130 petition; (4) a writ of prohibition, prohibiting DHS, DOJ, ICE, and EOIR from enforcing the I-130 revocation; (5) a writ of mandamus ordering the completion of Nageeb's immigration clearance; (6) a writ of mandamus ordering the adjudication of entitlement to permanent residence status notwithstanding the failure to investigate Nageeb's background; (7) a writ of mandamus compelling Defendants to complete its adjudication based on an ultra vires grant of power to the DHS; (8) a writ of prohibition, injunctive relief to prevent EOIR from imposing obligations on Plaintiffs and to prevent EOIR from relying on Judge Webber's I-485 pretermission order; and (9) Bivens damages against the Individual Capacity Defendants for alleged constitutional rights violations.

On June 15, 2009, Official Capacity Defendants filed a partial motion to dismiss Plaintiffs' third through eighth claims for relief based on lack of subject matter jurisdiction and failure to state a claim.

On June 15, 2009, Individual Capacity Defendants filed a motion to dismiss the ninth claim for relief based on lack of subject matter jurisdiction, personal jurisdiction as to certain Individual Capacity Defendants, and failure to state a claim.

On June 20, 2009, Plaintiffs filed oppositions to the Official Capacity Defendants' and Individual Capacity Defendants' motions.

On July 27, 2009, Official Capacity Defendants and Individual Capacity Defendants filed reply briefs.

On July 29, 2009, the court issued an order vacating the hearing date of August 3, 2009, and took the matter under submission.

On July 30, 2009, Plaintiffs filed objections to the court's July 29, 2009 order. On August 4, 2009, the Defendants filed a response to Plaintiffs' objections. On August 4, 2009, the court issued an order addressing Plaintiffs' objections. On August 17, 2009, Plaintiffs filed a sur-reply to Defendants' motion to dismiss. On September 2, 2009, the court issued an order addressing Plaintiffs' sur-reply.

FACTUAL ALLEGATIONS*fn3

This action concerns a dispute over Nora's I-130 revocation.

In June 1996, Nageeb filed an I-589 application for political asylum. On February 27, 2002, EOIR denied Nageeb's asylum application and ordered him removed. On or about June 9, 2003, Nora filed an 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. At the time the I-130 application was filed, Nageeb was in removal proceedings before EOIR. On March 21, 2006, DHS approved Nora's I-130 application.

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

On May 8, 2007, Judge Webber indicated that she was likely to grant Nageeb's I-485 adjustment of status application based on Nora's approved I-130 petition, subject to the completion of Nageeb's background check. On May 8, 2007, Judge Webber continued Nageeb's I-485 case to August 14, 2007, for purposes of allowing DHS to complete Nageeb's background check. On May 8, 2007, Judge Webber granted Nageeb's application for a waiver of a finding of inadmissability based on false statements that had been made in Nageeb's political asylum application.

On July 31, 2007, DHS requested a further continuance because they had not completed Nageeb's background check. Judge Webber granted the DHS's request and set the hearing for January 8, 2008. On January 7, 2008, Judge Webber issued a notice resetting the January 8, 2008 hearing date to April 22, 2008. On or about January 31, 2008, Judge Webber issued an order requiring Nageeb to submit a statement of readiness showing that he had taken new fingerprints and had updated his medical exam. Judge Webber's order required DHS to submit a statement of readiness on or before April 15, 2008, and, if the background check was not complete by then, a realistic estimate of when it would be complete. On February 15, 2008, Nageeb filed an opposition to Judge Webber's order.

On March 25, 2008, DHS, by its unit USCIS, issued a notice of intent to revoke ("Notice of Intent") Nora's I-130 petition based on an alleged insufficiency of evidence of a valid divorce in Yemen. Nageeb alleges that he had been divorced in Yemen and had reported that fact to USCIS prior to the approval of Nora's I-130 petition.

On March 27, 2008, DHS reported to EOIR that Nageeb's background check was still not complete, and that USCIS had issued a Notice of Intent and DHS asked for another continuance. Based on the DHS report, Judge Webber reset the April 22, 2008 hearing for August 26, 2008. On April 9, 2008, Nageeb responded to USCIS's Notice of Intent and produced a new document from the Yemeni government that he claims proves the validity of his divorce.

On April 30, 2008, DHS by USCIS issued a notice of revocation of Nora's I-130 ("Notice of Revocation") and revoked the I-130. DHS and USCIS indicated that Nora could appeal the revocation decision to the Board of Immigration Appeals ("BIA"). Nora did not appeal the decision to the BIA. Nora alleges that she could file a new I-130 petition for Nageeb but did not because Plaintiffs reasonably believe that DHS and USCIS would not act timely and adjudicate or find a pretext for denying it.

On June 5, 2008, DHS informed Judge Webber that Nageeb's background check had been completed. On June 5, 2008, DHS informed Judge Webber of the I-130 revocation and requested that EOIR pretermit Nageeb's I-485 application. DHS did not inform Judge Webber of any adverse findings arising from the background check. On June 8, 2008, Nageeb filed an opposition to DHS's ...


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