Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Omar v. Mueller

August 14, 2007

MOHAMED ELSAYED OMAR AND JENNIFER OMAR, PLAINTIFFS,
v.
ROBERT MUELLER, DIRECTOR FEDERAL BUREAU OF INVESTIGATIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Chesler, District Judge

FOR PUBLICATION

AMENDED OPINION

This matter comes before the Court upon the motion to dismiss filed by Defendants Robert S. Mueller, Michael Chertoff, Emilio Gonzalez and Donald Monica (collectively, "Defendants") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) [docket item # 12]. The Court has considered the parties' submissions in support of and in opposition to this motion, and, pursuant to Federal Rule of Civil Procedure 78, rules on the motion based on the papers submitted. For the reasons that follow, the Court grants Defendants' motion and dismisses the action for lack of jurisdiction.

I. BACKGROUND

Husband and wife Plaintiffs Mohamed Elsayed Omar and Jennifer Omar initiated this lawsuit on February 16, 2007 seeking a writ of mandamus requiring the United States Citizenship and Immigration Services (USCIS) to issue a decision on their joint I-751 application to remove conditions on Mr. Omar's permanent residence and on Mr. Omar's N-400 application for naturalization.

Mr. Omar became a conditional permanent resident on May 17, 2000 based on his marriage to Jennifer Omar. On or about February 25, 2002, Mr. and Mrs. Omar filed a joint petition to remove conditions on Mr. Omar's permanent residence (form I-751). On February 9, 2007, plaintiffs' I-751 application was approved.

Mr. Omar also filed an application for naturalization (form N-400) on or about May 12, 2003. According to the Complaint, although Mr. Omar has received several notices scheduling his interview for naturalization, these scheduled interviews have all been cancelled by USCIS. To date, Mr. Omar has not been interviewed. In response to his numerous inquiries about the status of his application, Mr. Omar has been informed that background checks in connection with his case remain pending.

Defendants have advised the Court that the naturalization process consists of five steps: (1) application, (2) background check, (3) interview, (4) decision and (5) oath of allegiance. As part of the background investigation, the Federal Bureau of Investigation ("FBI") conducts a name check through its National Name Check Program. Defendants inform the Court that on or about June 13, 2003, the USCIS requested that the FBI perform a name check for Mr. Omar. The name check is still pending.

II. DISCUSSION

A. Standard of Review

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a civil action for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Under Federal Rule of Civil Procedure 12(h)(3), the Court is required to dismiss the action whenever it appears that the court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). The plaintiff bears the burden of establishing subject matter jurisdiction. See, e.g., Lucas v. Gulf & W. Indus., Inc., 666 F.2d 800, 805 (3d Cir. 1981) (citing McNutt v. Gen'l Motors Acceptance Corp., 298 U.S. 178 (1936)). On a 12(b)(1) motion, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen v. First Federal Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

B. I-751 Petition To Remove Conditions on Permanent Residence

Plaintiffs do not dispute that their I-751 petition has been resolved. (Pl. Br. at 9.) To the extent Plaintiffs seek an order from this Court compelling the USCIS to adjudicate the I-751 petition, Plaintiffs' claims are moot, because the Court "cannot grant any effectual relief whatever" in favor of Plaintiffs with respect to the I-751 petition. Calderon v. Moore, 518 U.S. 149, 149 (1996) (per curiam) (quoting Mills v. Green, 159 U.S. 651 (1895)). The basic requirement of Article III of the Constitution that there be an actual case or controversy between the parties is lacking here with respect to Plaintiff's I-751 petition, and this Court therefore does not have jurisdiction over ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.