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Li v. Napolitano

July 30, 2009

KUI LI, PLAINTIFF,
v.
JANET NAPOLITANO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge

MEMORANDUM OPINION AND ORDER

The plaintiff, Kui Li, brought this action originally as a habeas petition to vacate the August 8, 2008 decision of the United States Citizenship and Immigration Services (the "C.I.S.") denying his Application to Register Permanent Residence or Adjust Status (the "I-485 application") on the basis of attempted fraudulent entry into the United States. In the interim, the C.I.S. reopened the plaintiff's case. The plaintiff now seeks a limited remand of his case which would preclude the C.I.S. from considering his past arrest for driving under the influence (the "D.U.I.") in the plaintiff's reopened I-485 application. The defendants, Janet Napolitano, Secretary of the Department of Homeland Security, Michael Aytes, Acting Deputy Director, United States Citizenship and Immigration Services, John P. Torres, Acting Assistant Secretary, Immigration and Customs Enforcement, Christopher Shanahan, New York Field Office Director, Immigration and Customs Enforcement, and Andrea Quarantillo, New York District Director, Citizenship and Immigration Services (collectively, the "defendants"), move to dismiss the plaintiff's action for lack of subject matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3).

I.

On a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of proving the Court's jurisdiction by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In considering such a motion, the Court generally must accept the material factual allegations in the Complaint as true. See J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). The Court does not, however, draw all reasonable inferences in the plaintiff's favor. See id.; see also Graubart v. Jazz Images, Inc., No. 02 Civ. 4645, 2006 WL 1140724, at *2 (S.D.N.Y. Apr.27, 2006). Indeed, where jurisdictional facts are disputed, the Court has the power and the obligation to consider matters outside the pleadings, such as affidavits, documents, and testimony, to determine whether jurisdiction exists. See APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003); see also Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998); Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). In doing so, the Court is guided by that body of decisional law that has developed under Federal Rule of Civil Procedure 56. Kamen, 791 F.2d at 1011 (collecting cases); see also Melnitzky v. HSBC Bank USA, No. 06 Civ. 13526, 2007 WL 1159639, at *5 (S.D.N.Y. Apr. 18, 2007).

With respect to motions made pursuant to Rule 12(h)(3), the analysis is the same as that for a Rule 12(b)(1) motion. See Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 879-80 n.3 (3d Cir. 1992); accord Peterson v. Cont'l Airlines, Inc., 970 F. Supp. 246, 248-49 (S.D.N.Y. 1997).

II.

For the purposes of this motion, the Court accepts as true the following facts as alleged in the Complaint. The plaintiff is a citizen of the People's Republic of China. (Compl. ¶ 2.) On August 19, 1991, at the age of 15, the plaintiff was arrested for attempting to enter the United States with a fraudulent Taiwanese passport given to him by a smuggler. (Compl. ¶ 2; Ex. A.) On March 20, 1992, an immigration court ordered the plaintiff to be excluded from the United States. The plaintiff did not comply with the exclusion order. (Compl. ¶ 2.) Instead, he remained in the United States, finding employment and starting a family. (Compl. ¶¶ 2, 12, 15-16.) In 2006, the plaintiff was arrested for driving under the influence, which brought him to the attention of Immigration and Customs Enforcement ("I.C.E."). The plaintiff is currently under an I.C.E. supervision order. (Compl. ¶ 2.) Subsequent to his arrest, the plaintiff successfully completed an alcohol abuse treatment program. (Compl. ¶ 14.)

On June 26, 2006, the plaintiff submitted an I-485 application to the C.I.S. (Ex. A.) On January 8, 2007 and August 7, 2008, officers from the New York District Office of the C.I.S. conducted interviews with the plaintiff in connection with the plaintiff's I-485 application. At both of these interviews, the plaintiff informed the officers that he attempted to enter the United States with a counterfeit passport when he was 15 years old. (Compl. ¶¶ 8-9.) At the August 7, 2008 interview, the plaintiff also submitted letters from the alcohol treatment center praising his success in completing its program. (Compl. ¶ 14.)

On August 8, 2008, the C.I.S. issued an order denying the plaintiff's I-485 application based on the plaintiff's arrest for attempting to enter the United States with fraudulent travel documents in violation of 8 U.S.C. § 1182(a)(6)(C)(i). (Compl. ¶ 4; Ex. A.) At some point between August 8, 2008 and August 20, 2008, the plaintiff filed another I-485 application. (Compl. ¶ 12.)

On August 20, 2008, the plaintiff filed this action seeking an order to vacate the decision of the C.I.S. on the grounds that the plaintiff was under 18 years of age when he was arrested for misrepresentation and therefore falls under the statutory exception to inadmissibility due to conviction of a crime. See 8 U.S.C. § 1182(a)(2)(A)(ii)(I). On March 26, 2009, the C.I.S. notified the plaintiff that it was reopening his case, which precipitated the defendants' motion to dismiss for lack of subject matter jurisdiction. (Defs.' 3/26/09 Letter to the Ct.)

III.

The defendants move to dismiss on the grounds that the plaintiff's case is moot because the C.I.S. vacated its August 8, 2008 decision and reopened the plaintiff's I-485 application, the relief that the plaintiff sought in his Complaint. The defendants also argue that the plaintiff's request for a limited remand precluding consideration of the plaintiff's D.U.I. arrest does not save the plaintiff's case from mootness because the plaintiff did not seek such relief in his Complaint and may not amend the Complaint through his brief. Moreover, the defendants contend that the Court may not curtail the discretion of the C.I.S. by preventing it from weighing the D.U.I. arrest.

The plaintiff responds that his case is not moot because his Complaint prays for "any other relief that this Court deems just and proper," which would include a limited remand precluding consideration of the plaintiff's D.U.I. arrest. (Compl. Prayer for Relief ¶ 3.) The plaintiff asserts that such relief is appropriate for two reasons. First, the plaintiff cites judicial hostility to "post hoc rationalizations." The plaintiff believes that if the C.I.S. denies the plaintiff's reopened I-485 application on the basis of his D.U.I. arrest when that arrest was not the basis of the original denial, the C.I.S. would be engaging in post hoc rationalization. (Ex. A.) Second, the plaintiff claims that this Court has the power to limit the discretion of the C.I.S. by preventing it from weighing the D.U.I. arrest. The plaintiff argues in the alternative that his case falls within the "capable of repetition, yet evading review" exception to the mootness doctrine. Cf. Knaust v. City of Kingston, 157 F.3d 86, 88 (2d Cir. 1998) (citing S. Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 514-15 (1911)). The ...


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