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Patel v. Wolf

United States District Court, D. Massachusetts

December 16, 2019

Anantkumar Patel, et al., Plaintiffs,
v.
Chad Wolf, et al., Defendants.

          MEMORANDUM & ORDER

          NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE.

         Anantkumar and Meenaben Patel (“the Patels” or “plaintiffs”) bring this action against Chad Wolf (Acting Secretary of the United States Department of Homeland Security), Kenneth T. Cuccinelli II (Acting Director of the United States Citizenship and Immigration Services), Michael J. McCleary (Director of the Boston Field Office of the United States Citizenship and Immigration Services), William Barr (United States Attorney General), James McHenry (Director of the Executive Office for Immigration Review) and Garry D. Malphrus (Acting Chairman of the Board of Immigration Appeals) (collectively, “defendants”).[1] Plaintiffs seek an order of the Court compelling defendants to adjudicate plaintiffs' applications for adjustment of immigration status.

         Pending before the Court is the motion of defendants to dismiss plaintiffs' complaint (Docket No. 7).

         I. Background

         Plaintiffs have lived in the United States for approximately 27 years since they entered in January, 1992, on six-month tourist visas. In 1993, long after the expiration of their visas, the Immigration and Naturalization Service (“INS”) placed plaintiffs into deportation proceedings. In 1996, plaintiffs were ordered deportable after they failed to appear at their removal hearing.

         In 2009, plaintiffs filed their first motion to reopen their deportation proceedings alleging that improper notice caused them to miss their 1996 hearing. An immigration judge in the Executive Office of Immigration Review (“EOIR”) denied plaintiffs' petition and plaintiffs appealed to the Board of Immigration Appeals (“BIA”) which affirmed the immigration judge's denial. Plaintiffs then appealed to the United States Court of Appeals for the Eighth Circuit, which denied their appeal.

         In December, 2015, plaintiffs filed a second motion to reopen deportation proceedings with the BIA based on pending visa petitions filed by their daughter who is a United States citizen. The BIA denied the motion as untimely.

         In November, 2016, United States Citizenship and Immigration Services (“USCIS”) approved plaintiffs' I-130 Petitions which made plaintiffs eligible to apply for adjustment of immigration status to permanent residents without leaving the United States. 8 U.S.C. § 1255.

         The following month, plaintiffs applied to USCIS for adjustment of status. In August and September, 2017, USCIS administratively closed Mr. and Mrs. Patel's applications. The agency explained in its denial that, because plaintiffs were respondents in a removal proceeding and were not “arriving aliens”, EOIR had exclusive jurisdiction to review their applications for adjustment of status. See 8 C.F.R. §§ 245.2(a) and 1245.2(a).

         In October, 2017, the Patels filed their third motion to reopen with the BIA, which was denied in February, 2018. The Eighth Circuit Court of Appeals subsequently denied plaintiffs' petition for review.

         The Patels filed their complaint in the instant action in February, 2019 (Docket No. 1). They once again request that their removal proceedings be reopened so that they may apply for adjustment of status. Defendants move to dismiss plaintiffs' complaint for lack of subject matter jurisdiction and failure to state a claim (Docket No. 7). Fed.R.Civ.P. 12(b)(1) and (6).

         II. Motion to Dismiss

         A. Standard of Review

         In opposing a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), the plaintiff bears the burden of establishing that the Court has jurisdiction. Lujan v. Defenders of Wildlife,504 U.S. 555, 561 (1992). If the defendant mounts a “sufficiency challenge”, the court will assess the sufficiency of the plaintiff's jurisdictional allegations by construing the complaint liberally, treating all well-pled facts as true and ...


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