United States District Court, D. Massachusetts
Akim Sultaliev et al., Individually and on Behalf of All Others Similarly Situated Plaintiffs,
Leon Rodriguez, Director of the United States Citizenship and Immigration Services, et al. Defendants.
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
immigration case involves several conditional permanent
residents (“plaintiffs”) who filed Form I-751
petitions for permanent resident status. Plaintiffs,
individually and on behalf of others similarly situated,
allege that United States Citizenship and Immigration
Services (“USCIS”) officials (collectively,
“defendants”) unlawfully failed to process and
decide their I-751 petitions within a reasonable time period.
before the Court are defendants' motion to dismiss and
plaintiffs' motion to amend their complaint. For the
reasons that follow, defendants' motion will be allowed
and plaintiffs' motion will be denied.
Akim Sultaliev, Kateryna Pshechenko, Iulia Rybalka, Kevin
Clifton and Olga Tolchinsky are conditional permanent
residents who reside in Massachusetts.
to the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1186a(a)(1), a foreign national married to a
United States citizen for less than two years can apply for
status as a conditional lawful permanent resident.
order to remove that conditional status (and become an
unrestricted lawful permanent resident), the married foreign
national must file an I-751 petition 90 days before the
two-year anniversary of the granting of such conditional
status. Both the foreign national and his or her spouse must
also appear for interviews before an officer of the
Department of Homeland Security.
1186a(d)(3) of the INA provides that the personal interview
must be conducted within 90 days of the date on which the
I-751 petition is filed. That deadline, as well as the
interview requirement itself, may be waived, however, at the
discretion of the Secretary of Homeland Security.
plaintiff in this case has filed an I-751 petition with the
Vermont Service Center but none of the plaintiffs has a
personal interview scheduled. In each instance, the
application has been pending for more than 90 days.
November, 2016, plaintiffs filed a two-count complaint
alleging violations of agency regulations, 8 C.F.R.
216.4(B)(1), (Count I) and the Administrative Procedure Act,
5 U.S.C. § 701 et seq., (Count II).
months later, in February, 2017, defendants moved to dismiss
the complaint for lack of subject matter jurisdiction and for
failure to state a claim upon which relief can be granted.
After the motion to dismiss was fully briefed, plaintiffs
moved to amend their complaint to add an additional
plaintiff. This memorandum addresses those pending motions.
Defendants' Motion to Dismiss
Lack of Subject ...