United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge.
case arises out of removal proceedings brought against
Patrice Compere (“Compere”). Compere and his
mother, Marly Compere Bernado, also known as Marly Brizard
(“Brizard” or collectively
“plaintiffs”), filed a complaint against the
Department of Homeland Security and various officers and
officials of the Department of Homeland Security, the United
States Citizenship and Immigration Services (the
“USCIS”) and Immigration and Customs Enforcement
(“ICE”) (collectively “defendants”)
alleging that they have unlawfully deprived Compere the
opportunity to adjudicate his application for adjustment of
status. Specifically, plaintiffs submit that defendants
violated the Administrative Procedure Act, 5 U.S.C. §
555(b), by unreasonably failing to produce for nearly 15
years the necessary documentation for Compere to file the
Form I-485 Adjustment of Status application. As a result of
that allegedly unreasonable delay in agency action, Compere
is no longer eligible for naturalization because of
subsequent criminal convictions and is subject to a final
order of removal from the United States.
seek a writ of mandamus to compel the USCIS to adjudicate
Compere's application for adjustment of status nunc pro
tunc to April, 2004, when the USCIS first failed to produce
the necessary documentation to plaintiffs for that
application. On March 20, 2019, this Court entered an order
denying plaintiffs' motion for a preliminary injunction
(Docket No. 26). For the reasons that follow, the Court will
now allow defendants' motion to dismiss for failure to
state a claim.
recitation of the facts of this case and the parties'
arguments relevant thereto, see the Court's prior order
on plaintiffs' motion for a preliminary injunction.
Motion to Dismiss A. Legal Standard
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). In considering the merits of a motion to dismiss, the
Court may look only to the facts alleged in the pleadings,
documents attached as exhibits or incorporated by reference
in the complaint and matters of which judicial notice can be
taken. Nollet v. Justices of Trial Court of Mass.,
83 F.Supp.2d 204, 208 (D. Mass. 2000), aff'd,
248 F.3d 1127 (1st Cir. 2000). Furthermore, the Court must
accept all factual allegations in the complaint as true and
draw all reasonable inferences in the plaintiff's favor.
Langadinos v. Am. Airlines, Inc., 199 F.3d 68, 69
(1st Cir. 2000). Although a court must accept as true all of
the factual allegations contained in a complaint, that
doctrine is not applicable to legal conclusions. Ashcroft
v. Iqbal, 556 U.S. 662 (2009).
party has addressed the standard for granting a writ of
mandamus. The First Circuit Court of Appeals has, however,
explained that a writ of mandamus is an extraordinary remedy
in which the plaintiff must demonstrate 1) a clear and
indisputable right to issuance of the writ, 2) no other
adequate source of relief such that without such issuance the
plaintiff is subject to “irreparable harm” and 3)
the equities, on balance, favor issuance of the writ. In
re Bulger, 710 F.3d 42, 45 (1st Cir. 2013). In addition,
the First Circuit Court of Appeals has stated that the writ
reserved for the immediate correction of acts or omissions by
the district court amounting to an usurpation of power.
In re Tsarnaev, 780 F.3d 14, 18 (1st Cir. 2015)
(internal quotation marks omitted) (quoting In re
Pearson, 990 F.2d 653, 656 (1st Cir. 1993)).
explained in this Court's prior order denying
plaintiffs' motion for a preliminary injunction,
plaintiffs have not established that they have a clear and
indisputable right to the ultimate relief sought. The
relevant caselaw is unclear as to whether this Court has the
authority to compel the USCIS to accept and adjudicate
Compere's application to adjust his immigration status
nunc pro tunc to April, 2004.
plaintiff's complaint does not seek review of the
exercise of the discretionary authority of this or any other
adjudicatory forum for which a writ of mandamus is intended.
See In re Tsarnaev, 780 F.3d at 20-22 (denying a
writ of mandamus to compel the district court to allow the
defendant's motion for change of venue); In re
Bulger, 710 F.3d at 48-49 (granting a writ of mandamus
to compel district court judge to recuse himself). Plaintiffs
have not ...