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AHMED v. MEISSNER

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


August 17, 1995

SHAIK MOSHI AHMED, Plaintiff, against DORIS MEISSNER, Commissioner, Immigration & Naturalization Service, IMMIGRATION & NATURALIZATION SERVICE, Defendants. MAHMOOD BAIG MIRZA, Plaintiff, - against - DORIS MEISSNER, Commissioner, Immigration & Naturalization Service, IMMIGRATION & NATURALIZATION SERVICE, Defendants. ELSHAIKH BAKHIET BABIKER, Plaintiff, - against - DORIS MEISSNER, Commissioner, Immigration & Naturalization Service, IMMIGRATION & NATURALIZATION SERVICE, Defendants.

The opinion of the court was delivered by: PETER K. LEISURE

MEMORANDUM ORDER

 LEISURE, District Judge:

 Defendants, Doris Meissner (the "Commissioner") and the Immigration & Naturalization Service (the "INS") move to dismiss the complaints of Shaik Moshi Ahmed ("Ahmed"), Mahmood Baig Mirza ("Mirza") and Elshaikh Bakhiet Babiker ("Babiker") for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. *fn1" For the reasons stated below, defendants' motion to dismiss for lack of subject matter jurisdiction is granted.

 BACKGROUND

 Plaintiffs seek to have this Court compel the INS to reopen its denial of their applications under section 210 of the Immigration and Nationality Act of 1952, as amended (the "INA"), 8 U.S.C. § 1160, for legalization as Special Agricultural Workers ("SAWs"). *fn2" An eligible SAW is accorded temporary lawful United States resident status. See 8 U.S.C. § 1160(a). An alien applying for lawful temporary status as a SAW must

 

establish, by a preponderance of the evidence, that [he] performed the requisite ninety days of qualifying seasonal agricultural services. To meet this burden the applicant must present evidence of eligibility independent of his or her own testimony, such as an employer's payroll records or affidavits by agricultural producers, foremen, farm labor contractors, union officials, fellow employees, or other persons with specific knowledge of the applicant's employment.

 Rahim, 24 F.3d 440 at 441.

 When a SAW application is complete, an INS legalization officer ("LO") makes a recommendation to an INS regional processing facility ("RPF") to either approve or deny the application. See 8 C.F.R. § 210.1(q). If the LO recommends denial and the RPF concurs, the RPF will send the applicant a notice of intent to deny, advising him of the grounds of the denial and giving him the opportunity to submit further evidence to the RPF. "If the RPF does not [then] overrule [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.

 DISCUSSION

 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. *fn3" 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). *fn4"

 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, *fn5" 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). *fn6"

 CONCLUSION

 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.

 SO ORDERED,

 Dated: August 17, 1995

 New York, New York

 Peter K. Leisure

 U.S.D.J.


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