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May 11, 2005.

AZAM HANIF, Plaintiff,
MARY ANN GANTNER, New York District Director, U.S. Citizenship and Immigration Services; MICHAEL CHERTOFF, Secretary, Department of Homeland Security; GREG KENDRICK, Newark District Field Director, U.S. Immigration and Customs Enforcement; DEPARTMENT OF HOMELAND SECURITY; U.S. CITIZENSHIP AND IMMIGRATION SERVICES; and U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendants.

The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Plaintiff Azam Hanif ("Hanif") commenced this action by order to show cause requesting that the Court stay his removal to Pakistan and compel Mary Ann Gantner ("Gantner"), New York District Director of United States Citizenship and Immigration Services ("CIS"), and those acting under her to adjudicate Hanif's application to adjust his immigration status to that of a lawful permanent resident. The Court held a hearing on this matter on April 25, 2005 (the "April 25th Hearing"). By Order dated April 29, 2005 (the "April 29th Order"), the Court denied Hanif's requests and dismissed this action in its entirety. The Court hereby amends the April 29th Order to rule exclusively that this action is dismissed based on a lack of subject matter jurisdiction, without ruling on the merits. The Court sets forth below the specific findings, reasoning, and conclusions underlying the April 29th Order and the Court's amendment thereto.


  Hanif is a citizen of Pakistan who entered the United States on December 24, 1992. Although he used a fraudulent passport in order to travel to the United States, Hanif did not present that passport to immigration officials in the United States. Instead, he stated that he wished to apply for asylum and was paroled into the United States for the purpose of applying for that benefit.

  An Immigration Judge denied Hanif's asylum application on September 27, 1994 and ordered him excluded based on his lack of valid entry documents. Hanif did not appeal that order and, as a result, the order became administratively final thirty days after it was issued. See 8 U.S.C. § 1101(a) (47) (B) (ii) (providing that a removal order becomes final upon "the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals"); 8 C.F.R. § 1240.15 (providing that "[a]n appeal [of a removal order] shall be filed within 30 calendar days after the mailing of a written decision, the stating of an oral decision, or the service of a summary decision.").

  Hanif remained in the United States illegally after being ordered excluded. On July 7, 2002, Hanif married a naturalized United States citizen, Shahida Parveen ("Parveen"). Parveen filed a visa petition on Hanif's behalf on December 16, 2002. On May 26, 2004, that petition was approved.*fn2

  On or about April 5, 2005, for reasons that neither Hanif nor the Government states, United States Immigration and Customs Enforcement ("ICE") investigators went to Hanif's home and questioned Hanif's family as to his whereabouts. Hanif was not home at the time. On or about April 8, 2005, Hanif applied to adjust his status to that of a lawful permanent resident. On April 14, 2005, having been informed by his family that ICE was looking for him, Hanif turned himself in to the ICE Investigations Unit in New York City. At that time, he provided ICE officers with his Pakistani passport and submitted an application for an administrative stay of removal ("Form I-246"), along with copies of his adjustment of status application and other documents.

  According to Hanif, the ICE officers with whom Hanif met represented to him that they lacked authority to consider his request for a stay of removal. Hanif was taken into ICE custody and placed in detention in New Jersey. Hanif represents that ICE officers indicated that they intended to deport him, by executing his prior exclusion order, as soon as travel arrangements could be made.



  "A plaintiff has the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists." Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). The Court finds that Hanif has not met that burden in this case. Hanif asserts that the Court has jurisdiction over his request for a stay of removal under 28 U.S.C. § 1331 ("Section 1331"). Section 1331 grants jurisdiction to federal courts over cases "arising under" federal law. Hanif claims that "this action arises under the Administrative Procedure Act . . . and the [Immigration and Nationality Act] and regulations implementing it." (Compl. ¶ 5.) Specifically, Hanif asserts that the instant action arises under the sections of the Administrative Procedure Act ("APA") codified at 5 U.S.C. §§ 702 ("Section 702") and 704 ("Section 704"). (See Compl. ¶ 5.) Section 702 provides a cause of action against the government to "a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702. Section 704 provides that "final agency action for which there is no other adequate remedy in a court [is] subject to judicial review." 5 U.S.C. § 704.

  In order to determine whether or not the Court has jurisdiction over Hanif's stay request pursuant to Section 1331 in conjunction with the APA and the INA, it is necessary first to identify the "agency action" that Hanif challenges here. Hanif explicitly states that he "is not challenging his order of exclusion." (Plaintiff's Reply Brief to the Government's Opposition to His Request for a Stay of Removal at 2.) Instead, with respect to his request for a stay, Hanif characterizes the agency action he is challenging as "the defendants' decision to deport him without adjudicating his application for adjustment of status." (Compl. ¶ 6.) Because Hanif has made it clear that he does not seek to challenge the validity of his exclusion order, the Court interprets the phrase, "the defendants' decision to deport him," to refer to the decision to execute the exclusion order, rather than the decision to enter that order in the first place.

  Hanif alleges that he "has been adversely affected by the defendants' decision to deport him without adjudicating his application for adjustment of status." (Compl. ¶ 6.) In order to show that that decision has adversely affected him "within the meaning of a relevant statute," 5 U.S.C. § 702, Hanif must demonstrate that the interest he asserts in this case is "arguably within the zone of interests to be protected or regulated by the statute . . . in question." Knowles v. U.S. Coast Guard, 924 F. Supp. 593, 599 (S.D.N.Y. 1996) (quoting Sullivan v. Syracuse Housing Auth., 962 F.2d 1101, 1106 (2d Cir. 1992) (internal quotation marks omitted)). "The question under the zone-of-interests test of § 702 is simply whether the language of the statutes invoked by the plaintiff or the supporting legislative history suggests a congressional intent to permit the plaintiff's suit." Federation for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897, 902 (D.C. Cir. 1996). This test "is not meant to be especially demanding; in particular there need be no indication of congressional purpose to benefit the would-be plaintiff." Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 399-400 (1987). Nevertheless, the zone-of-interests test "denies the right of review if the plaintiffs' interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit suit." Id. at 399.

  The statute in question here is the INA. (See Compl. ¶ 8.) Hanif's claims are related in part to INA § 245(a), codified at 8 U.S.C. § 1255(a), which governs adjustment of status, or the process by which an alien obtains lawful permanent residence in the United States. Given that the purpose of this statutory provision is to enable qualified individuals to become lawful permanent residents of the United States, it is at least arguable that, under some circumstances, agency action that adversely impacts an individual's ability to apply for or obtain lawful permanent residence could be construed as falling within the zone of interests protected or regulated by the INA. See, e.g., Yu v. Brown, 36 F. Supp. 2d 922 (D.N.M. 1999) (interests of class of individuals requesting court to compel Immigration ...

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