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Saleh v. Holder

United States District Court, E.D. New York

November 4, 2014

KAMAL SALEH, Plaintiff,
ERIC H. HOLDER, Attorney General of the United States, JOHN KERRY, Secretary of State, and RAND BEERS, Acting Secretary of Homeland Security, Defendants

For Kamal Saleh, Plaintiff: Gouda B. Ali Gouda, LEAD ATTORNEY, Ali Gouda Law Group, Brooklyn, NY.

For Eric Holder, U.S. Attorney General, Mr. John Kerry, U.S. Secretary of the Department of State, Rand Beers, Acting Secretary, Department of Homeland Security, Defendants: Elliot M. Schachner, United States Attorneys Office, Eastern District of New York, Brooklyn, NY.


ERIC N. VITALIANO, United States District Judge.

Plaintiff Kamal brings this claim against three current or former executive department heads -- Eric Holder, John Kerry, the Secretary of State, and Rand Beers, a former Acting Secretary of Homeland Security.[1] This action is brought under the Administrative Procedure Act (" APA" ), 5 U.S.C. § 706(1), and the mandamus statute, 28 U.S.C. § 1361. It seeks a judgment declaring the United States must adjudicate visa applications for his wife and their three children, and the issuance of a writ of mandamus directing the government to do so. Defendants have filed a motion to dismiss for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), or, alternatively, for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). For the reasons stated below, the complaint is dismissed for lack of subject matter jurisdiction.


The following facts are drawn from the complaint and its attachments. The allegations as to facts underlying plaintiff's claims are accepted as true for the purposes of this motion.

Saleh is a United States citizen. (Compl., Dkt. 1, ¶ 5). On March 23, 2010, Saleh submitted I-130 petitions with United States Consular and Immigration Services (" CIS" ) seeking visas for his wife, Elham Saleh Almardahi, and three children, Mazin, Suhilah, and Anas, all of whom reside in Yemen. (Compl. ¶ 5). According to the complaint, CIS approved the petitions and forwarded them to the National Visa Center for processing. (Compl. ¶ 7). The visa applications were then sent to the U.S. Embassy in Sana'a, Yemen, on December 14, 2012. All four family members were interviewed at the embassy on January 20, 2013. (Compl. ¶ 8). The embassy then conducted a medical examination of two of his sons, Mazin and Anas, to determine their age and Saleh's paternity. (Compl. ¶ 9). Saleh contends that the results of the exam confirmed his sons' ages and that Saleh was indeed their father. (Compl. ¶ 8). Saleh received a " Visa Pick-Up Receipt" which informed him that the visas for his family members could be picked up, (Compl. ¶ 10), and a copy of it is attached to the complaint as " Exhibit 5." The exhibit, however, indicates that the receipt applies only to his wife Elham's case number. (Compl. Ex. 5).

Plaintiff went to the embassy in Yemen on February 3, 2013, where, he says, he was told that all of his family's visa applications were actually under " administrative review." (Compl. ¶ 10). Saleh says he has tried to follow up with the embassy for several months, but only received automated messages telling callers that the embassy was closed and that all visa applications were under " administrative review." (Compl. ¶ 12).

With the administrative process at the embassy stalemated, Saleh filed this action on December 16, 2013 claiming that the embassy's inaction constitutes an unreasonable delay and an unlawful withholding of agency action. (Compl. ¶ ¶ 13, 14).

Standard of Review

" A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). " The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). In determining the existence of subject matter jurisdiction, a district court may consider evidence outside the pleadings. Makarova, 201 F.3d at 113. Subject matter jurisdiction is a threshold issue and, thus, when a party moves to dismiss under both Rules 12(b)(1) and 12(b)(6), the motion court must address the 12(b)(1) motion first. Sherman v. Black, 510 F.Supp.2d 193, 197 (E.D.N.Y. 2007) (citing Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990)).

To survive a Rule 12(b)(6) motion, the complaint " must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, at 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This " plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotation marks omitted); see Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (interpreting Twombly to require a " plausibility standard" that " obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible" ) (emphasis omitted), rev'd on other grounds, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). On a Rule 12(b)(6) motion, a court must accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party. Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008). Unlike a Rule 12(b)(1) motion, a court may only, when a party moves under subsection (b)(6), consider the pleading itself, documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiffs possession or that the plaintiff knew of when bringing suit, and matters of which judicial notice may be taken. See Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 156 (2d Cir. 2006).


Saleh's complaint demands that the Court order the American embassy in Yemen to complete its processing of the visa applications of his wife and his three children, which, he contends, were already approved by CIS and transferred to the National Visa Center. (Compl. ¶ 7). Hinged to its claim that subject matter jurisdiction is wanting, the government has submitted exhibits showing that visa applications of the kind filed by Saleh have been delayed because of an increasingly difficult security situation on the ground in Yemen. See Press Release, Embassy of the United States Sana'a, Yemen, Security Message for U.S. Citizens: Consular Services Remain Reduced (Gov't Mem. App'x H). The government has also submitted affidavits in support of its motion showing that the embassy has finally granted visas for Saleh's wife and one child, but has temporarily denied visas for the other two children until Saleh provides certain requested additional documentation. (Gov't Mem. at 8-9; App'x I, J and K). As a consequence, the government argues, this adjudication of the visa applications makes the complaint moot. Id. ...

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