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HULI v. WAY

October 13, 2005.

ROZETA GOXHABELLI HULI, Petitioner,
v.
TERRY E. WAY, District Director of the Nebraska Service Center, Bureau of Citizenship and Immigration Affairs, formerly the Immigration and Naturalization Service, Respondent.



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

DECISION AND ORDER

Petitioner Rozeta Goxhabelli Huli ("Huli"), an asylee residing in the United States, brings this action by Petition for a Writ of Mandamus (the "Petition") to set aside Respondent's denial of Huli's Refugee Asylee Relative Petition seeking derivative asylee status for her husband, Hartin Huli, and ordering Respondent to grant Huli's Refugee Asylee Relative Petition. Respondent Terry E. Way ("Respondent"), District Director of the Nebraska Service Center, Bureau of Citizenship and Immigration Services ("BCIS") (formerly known as the Immigration and Naturalization Service ("INS")), cross-moves to dismiss the Petition for lack of subject matter jurisdiction, or in the alternative, for a grant of summary judgment. Huli did not file any submissions in response to Respondent's motion to dismiss the Petition.

On September 30, 2005, this Court issued an Order granting Respondent's motion to dismiss for lack of subject matter jurisdiction and stated that its findings, reasoning and conclusions would be set forth in a subsequent decision. Accordingly, for the reasons discussed below, Respondent's motion is granted and Huli's Petition is dismissed.

  I. BACKGROUND

  The following facts are taken from the Petition, except where noted. All factual allegations in the Petition are assumed to be true for purposes of this motion.*fn1

  Huli was granted asylum in the United States in May 1997. In October 1999, Huli filed a Refugee Asylee Relative Petition ("I-730 Petition") with the INS in which she requested derivative asylee status for her husband Hartin Huli ("Hartin") pursuant to the Immigration and Naturalization Act ("INA") § 208 (b) (3) (A) (codified at 8 U.S.C. § 1158 (b) (3) (A)). That provision states that "a spouse or child . . . of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien." 8 U.S.C. § 1158(b) (3) (A).

  An applicant for derivative asylum status must demonstrate that the marriage relationship existed "at the time the principal alien's asylum application was approved." 8 C.F.R. § 208.21. The burden of proving the marriage relationship is on the derivative asylum applicant. See 8 C.F.R. § 208.21(f). Evidence demonstrating eligibility for derivative asylum status must be submitted "as set forth in 8 C.F.R. § 204" and should include, "where possible," a "certificate of marriage issued by civil authorities." Id.; 8 C.F.R. § 204.2.

  In October 1999, Huli submitted her I-730 Petition to BCIS accompanied by a copy of a marriage certificate issued by a religious entity, the Albanian Islamic Cultural Center, dated March 3, 1997. (See Certificate of Marriage Registration, dated March 3, 1997, attached as Exhibit 1 to Huli's Petition for a Writ of Mandamus, dated April 1, 2003 ("Petition").) Huli did not submit a marriage certificate issued by civil authorities with her initial application materials.

  Huli attempted to obtain a civil marriage certificate prior to obtaining asylum status but was turned away from the New York City Clerk's Office because she lacked the required identification documentation. (See Brief of Petitioner, dated January 3, 2005 ("Pet.'s Brief"), at 1.) In July 1998, after Huli was able to obtain identification documents from the federal government as a result of obtaining asylum status, Huli and Hartin were "re-married" at the City Clerk's Office and issued a civil marriage certificate dated July 30, 1998. (Id. at 1-2.)

  On March 30, 2000, BCIS sent a "Request for Evidence" in response to Huli's I-730 Petition. The Request for Evidence stated that "the documentation submitted is not sufficient to warrant a favorable consideration of your petition/ application. . . . The church issued marriage certificate is insufficient, please submit a copy of the marriage certificate of Rozeta Goxhabelli and Hartin Huli which has been registered with the proper civil authorities." (See Request for Evidence, dated March 30, 2000, attached as Exhibit 6 to the Petition.) In response to the Request for Evidence, Huli submitted a copy of a marriage certificate issued by the City of New York dated July 30, 1998. (See Certificate of Marriage Registration, dated July 30, 1998, attached as Exhibit 2 to the Petition.)

  By letter dated May 23, 2000, BCIS denied Huli's I-730 Petition. The letter explained the grounds for denial as follows:
The evidence of the record indicates that your application for asylum in the United States was approved on May 27, 1997. The evidence of the record also indicates that you were married on July 30, 1998, after your application for asylum was approved. Since the relationship between you and the beneficiary did not exist when your application was approved, this petition may not be approved.
(Letter from Respondent to Huli, dated May 23, 2000, attached as Exhibit 7 to the Petition.)

  On December 2, 2002, Huli, having retained counsel, submitted a Motion to Reopen and Reconsider the denial of her I-730 Petition. BCIS denied Huli's motion on the basis that the motion was untimely. (See Letter from Respondent to Huli, dated February 18, 2003, attached as Exhibit 10 to the Petition.) Huli now seeks a writ of mandamus setting aside the denial of her I-730 Petition and ordering Respondent to grant the Petition.

  II. DISCUSSION Prior to addressing any of the pleadings, the Court must determine whether it has subject matter jurisdiction over the claims raised by Huli. See Steel Co. v. Citizens For a Better Env't, 523 U.S. 83 (1998). A plaintiff has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists. See 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 Huli has not met that burden in this case.

  The Petition states that the proceeding is brought pursuant to the Mandamus Act, 28 U.S.C. § 1361 ("Section 1361"). (See Petition at 1). In a later submission, Huli asserts that the INA § 279 ("Section 279"), codified at 8 U.S.C. § 1329, and 28 U.S.C. § 1331 ("Section 1331") also provide bases for jurisdiction. (Pet.'s Brief at ...


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