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Kolenovic v. United States Citizenship & Immigration Serv.

United States District Court, S.D. New York

March 24, 2014

ALMIRA KOLENOVIC, Plaintiff,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICE, Defendant

For Almira Kolenovic, Plaintiff: Thomas Edward Moseley, Law Offices of Thomas E. Moseley, Newark, NJ.

For United States Citizenship and Immigration Service, Defendant: Christopher Kendrick Connolly, United States Attorney's Office, SDNY, New York, NY.

Page 323

OPINION AND ORDER

Ronnie Abrams, United States District Judge.

Plaintiff Almira Kolenovic challenges the United States Citizenship and Immigration Service's (" USCIS" ) denial of her application to adjust her immigration status. Kolenovic arrived in the United States from the former Yugoslavia shortly after her first birthday and has lived here her whole life. She successfully applied for temporary residence and was, by all accounts, on her way to permanent residence under the amnesty provisions of the Immigration Reform and Control Act of 1986 (" IRCA" ), Pub. L. No. 99-603, 100 Stat. 3359. Although Kolenovic's family members applied for and obtained permanent residence, she submitted her application approximately nineteen months late, and it was denied. Kolenovic, who was fourteen years old on the date her application was due, alleges that her application was not filed on time because of ineffective assistance of counsel.

Although the equities make this case a difficult one, Congress's intent is clear: no status-adjustment application that is denied " based on a late filing of an application for such adjustment may be reviewed by a court of the United States." 8 U.S.C. § 1255a(f)(2). Nor may a court hear a challenge to an adjustment-of-status denial unless the applicant is facing an order of deportation. The Court therefore lacks jurisdiction to hear Kolenovic's claim.

BACKGROUND

The facts alleged in Kolenovic's Amended Complaint--which the Court assumes to be true for purposes of this motion, see Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011)--are straightforward. Kolenovic arrived in the United States on September 1, 1979, and obtained temporary residence under the IRCA on November 8, 1989. (Am. Compl. ¶ ¶ 4-5.) Her application for permanent residence was due forty-three months later, see 8 U.S.C. § 1255a(b)(1)(A), but she did not submit it until December 5, 1994, (Am. Compl. ¶ 7). The Amended Complaint alleges that " [u]pon information and belief an application to adjust status to permanent residence was not filed for the plaintiff within this limitation period due to ineffective assistance of counsel." (Id. at 6.)

USCIS denied Kolenovic's application for permanent residence on January 30, 1995, and informed her of its intention to terminate her temporary resident status.[1] (See Am. Compl. ¶ 7 & ex. B at 1.) After affording Kolenovic an opportunity to be heard, USCIS terminated her temporary resident status. Id. ¶ 7 & ex. B at 2; see also 8 U.S.C. § 1255a(b)(2)(C) (providing

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for termination of temporary resident status). In October 1997, Kolenovic submitted a second application to adjust her status to permanent residence. (Id. ¶ 8 & ex. C.) Noting that Kolenovic's temporary residence had already been terminated, USCIS denied the application as moot on December 1, 1998.[2] (Id. ¶ 8 & ex. D.)

Kolenovic filed the instant lawsuit on August 13, 2012. (Dkt. no. 1.) Her Amended Complaint alleges that IRCA's forty-three month deadline was subject to tolling and seeks a judgment " [o]rdering defendant to adjudicate her first or second application for adjustment of status as timely filed." (Am. Compl. at 4.)

DISCUSSION

USCIS moves to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) or, alternatively, for failure to statue a claim under Fed.R.Civ.P. 12(b)(6). Because the Court concludes that it lacks subject matter ...


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