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ZHENG v. INS

July 19, 1996

ZHENG CHENG ZHENG (A 72 435 929), Plaintiff, against IMMIGRATION AND NATURALIZATION SERVICE, Defendant.


The opinion of the court was delivered by: LEISURE

 LEISURE, District Judge :

 Before the Court is the motion of defendant Immigration and Naturalization Service (the "INS") to dismiss the complaint of plaintiff Zheng Cheng Zheng, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. For the reasons stated below, the Court grants defendant's motion to dismiss.

 BACKGROUND

 Currently, the immigration laws establish a quota system that only permits a certain number of immigrants from a particular region in the world to become lawful permanent residents in any given fiscal year. The flow of immigrants is controlled by the issuance of visa numbers to those whose turn has come up. Obtaining a visa number, which means that a visa is available if an application is approved, is one of the requirements for the adjustment of immigration status. See 8 U.S.C. § 1255(a)(3).

 For plaintiff, this requirement was first satisfied on August 1, 1995. He applied for an adjustment of status one week later, and was informed by the INS that the application would likely take at least sixty days to process. The primary reason the process takes this long is that the INS is required to conduct fingerprint identification checks through the Federal Bureau of Investigation ("FBI") for all individuals over sixteen years of age who are seeking to adjust their immigration status. See Departments of Commerce, Justice, and State, The Judiciary, and Related Agencies Appropriations Act, 1995, Pub. L. No. 103-317, Title V, § 506(d), 1994 U.S.C.C.A.N. (108 Stat.) 1724, 1766 (1994) (codified at 8 U.S.C. § 1255 note (1994) (Fingerprint Checks)).

 In an attempt to expedite his application, plaintiff paid a fee of $ 18.00 directly to the FBI to obtain a copy of his report. On September 26, 1995, he received the copy of the report indicating that he had no arrest record, and the next day he had the copy delivered to the INS. The INS, however, would not accept it as satisfying the need for FBI clearance. On September 30, 1995, while still waiting for the INS to finish processing his application, plaintiff turned twenty-one years of age and became ineligible to maintain an application derivative of his father's. *fn2"

 Plaintiff now requests this Court to hold that the INS's refusal to consider the FBI report he submitted is unlawful.

 DISCUSSION

 I. Jurisdiction is Assumed for Purposes of this Motion.

 In his complaint, plaintiff states that there is subject matter jurisdiction over this action pursuant to 8 U.S.C. § 1329, 28 U.S.C. §§ 1331, 1361, 2201, 2202, and 5 U.S.C. §§ 701-707. Without delving into a difficult analysis of this scattershot listing of statutory provisions, the Court assumes jurisdiction for the purposes of this motion. "On some occasions . . . considerations of judicial economy and restraint may persuade the court to avoid a difficult question of subject-matter jurisdiction when the case may be disposed of on a simpler ground." Cantor Fitzgerald, L.P. v. Peaslee, 88 F.3d 152, 1996 WL 377051, at *3 (2d Cir. July 8, 1996) (citing Browning-Ferris Indus. v. Muszynski, 899 F.2d 151, 159 (2d Cir. 1990)). "As to subject matter jurisdiction, a court may assume the existence of such jurisdiction and adjudicate . . . in favor of a defendant, without making a definitive ruling on jurisdiction." In re DES Litig., 7 F.3d 20, 24 (2d Cir. 1993) (construing Browning-Ferris Indus., 899 F.2d at 159).

 II. Plaintiff has Failed to State a Claim upon which Relief may be Granted

 In deciding defendant's Rule 12(b)(6) motion to dismiss, the Court accepts as true the material facts alleged in the complaint and draws all reasonable inferences in plaintiff's favor. See Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir. 1995) (citing Hill v. City of New York, 45 F.3d 653, 657 (2d Cir. 1995)). A motion to dismiss must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). ...


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