[a] denial, the applicant is notified of the denial and of his or her right to appeal the determination to the Legalization Appeals Unit ("LAU"), which is authorized to make the final administrative decision in each case." Rahim, 24 F.3d at 442.
In the instant actions, the LAU found that the evidence submitted by plaintiffs failed to overcome the INS's adverse evidence and issued final notices of denial. Plaintiffs seek to have this Court compel the INS to reopen its denial of their applications, and defendants contend that this Court lacks subject matter jurisdiction over plaintiffs' claims.
Preliminarily, this Court notes that on September 16, 1994, the Government, in a similar case, obtained dismissal on jurisdictional grounds. See Basharath v. Meissner, Order, No. 94 Civ. 226 (CBM) (S.D.N.Y. Sept. 16, 1994). The primary difference between that case, decided by the Honorable Constance B. Motley, United States District Judge, Southern District of New York, and the instant case is that, here, plaintiffs seek to amend their complaints to allege a pattern and practice of due process violations by defendants in adjudicating SAW applications.
However, this Court, in a case substantially similar to the instant one, again dismissed on jurisdictional grounds. On June 20, 1995, after oral argument, the Honorable Shira A. Scheindlin, United States District Judge, Southern District of New York, determined that even allowing plaintiff to amend his complaint to allege a pattern and practice of due process violations by defendants in adjudicating SAW applications, the Court lacked subject matter jurisdiction. See Malik v. Meissner, No. 94 Civ. 8289 (SAS) (S.D.N.Y. June 20, 1995).
Finally, in a third case before this Court, the Honorable John E. Sprizzo, United States District Judge, Southern District of New York, determined after oral argument held on July 14, 1995, that a complaint, substantially similar to plaintiffs' proposed amended complaints in the instant action, should be dismissed by the Court for lack of subject matter jurisdiction. See Nadeem v. Immigration and Naturalization Serv., Order, No. 94 Civ. 2617 (JES) (S.D.N.Y. July 19, 1995).
This Court finds that the Government's motion to dismiss the instant actions for lack of subject matter jurisdiction should be granted for the reasons stated in the decisions by Judge Scheindlin and Judge Sprizzo. Specifically, there shall be judicial review of a denial of an adjustment or SAW application "only in the judicial review of an order of exclusion or deportation" pursuant to 8 U.S.C. § 1105a. See 8 U.S.C. § 1160 (e)(3)(A). Moreover, review of a deportation order is available only in the court of appeals upon petition for review. See 8 U.S.C. § 1105a. In other words, judicial review of an individual's denial of SAW status is limited to review of an order of exclusion or deportation by the circuit court. See Malik, No. 94 Civ. 8289 at 23.
Although district courts do have subject matter jurisdiction to hear general collateral challenges to unconstitutional practices and policies used by the INS in processing applications, this Court finds that even accepting the allegations in the proposed amended complaints to be true, they do not state any due process violation or unconstitutional policies. See id.; Nadeem, No. 94 Civ. 2617 (JES). Plaintiffs have not alleged wide-spread abuse by immigration officials nor have they revealed a wholesale and carefully orchestrated program of constitutional violations. See Malik, No. 94 Civ. 8289 at 24. Plaintiffs seek only to reopen their individual applications rather than an injunction to enjoin INS procedures. See id. at 26. District Courts are foreclosed from reviewing individual denial of SAW status applications. See McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 486, 112 L. Ed. 2d 1005, 111 S. Ct. 888 (1991). Because the amended complaints seek review of the plaintiffs' individual denials of SAW status,
this Court lacks subject matter jurisdiction to hear their claims, and the case is dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).
For the reasons stated above, defendants' motion to dismiss these actions for lack of subject matter jurisdiction are granted and these actions are dismissed in their entirety.
Dated: August 17, 1995
New York, New York
Peter K. Leisure