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Sultaliev v. Rodriguez

United States District Court, D. Massachusetts

July 10, 2017

Akim Sultaliev et al., Individually and on Behalf of All Others Similarly Situated Plaintiffs,
v.
Leon Rodriguez, Director of the United States Citizenship and Immigration Services, et al. Defendants.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge

         This 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.

         Pending 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.

         I. Background

         A. Factual Background

         Plaintiffs Akim Sultaliev, Kateryna Pshechenko, Iulia Rybalka, Kevin Clifton and Olga Tolchinsky are conditional permanent residents who reside in Massachusetts.

         Pursuant 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.

         In 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.

         Section 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.

         Each 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.

         B. Procedural History

         In 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).

         Three 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.

         II. Defendants' Motion to Dismiss

         A. Legal Standards

         1. Lack of Subject ...


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