United States District Court, D. New Jersey
before the Court is Defendants James McCament,  John Kelly, Ron
Rosenberg, and Laura B. Zuchowski's motion to dismiss
Plaintiff Shahedul Islam's Complaint for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). (D.E. No. 15). The parties briefed Defendants'
motion (see D.E. No. 15-1 (“Def. Mov.
Br.”), 16 (“Pl. Opp. Br.”) & 18
(“Def. Reply Br.”)), and the Court decided the
matter without oral argument under Federal Rule of Civil
Procedure 78(b). For the following reasons, Defendants'
motion is GRANTED.
parties are familiar with the facts and procedural posture of
this case, so the Court will be brief. Plaintiff is a
native citizen of Bangladesh, currently residing in Clifton,
New Jersey. (D.E. No. 1, Compl. ¶ 15). In September
2000, Plaintiff completed and filed a DS-15 form to be
admitted to the United States on a B-2 nonimmigrant visa.
(Id. ¶ 18). Plaintiff's B-2 visa was
granted, and Plaintiff entered the United States in December
2000. (Id. ¶ 25).
February 2003, Plaintiff married Maria Espinal, a naturalized
United States citizen. (Id. ¶ 24). About two
months later, Ms. Espinal filed an I-130 Petition for Alien
Relative on Plaintiff's behalf, which was approved in
March 2004. (Id. ¶ 27). Plaintiff then filed an
I-485 Application to Register Permanent Resident or Adjust
Status. (Id. ¶ 28).
and Ms. Espinal divorced in December 2004, prompting Ms.
Espinal to withdraw her I-130 Petition filed on behalf of
Plaintiff. (Id. ¶¶ 29-30). As a result of
that withdrawal, U.S. Citizenship and Immigration Services
(“USCIS”) denied Plaintiff's I-485
Application. (Id. ¶ 30).
alleges that Ms. Espinal was physically and verbally abusive
toward him during their marriage. (Id. ¶ 31).
To that end, Plaintiff filed in March 2005 an I-360 Petition
seeking immigrant classification as the former spouse of an
abusive United States citizen. (Id. ¶ 32).
USCIS approved Plaintiff's I-360 Petition in December
2006 (id. ¶ 33), and Plaintiff filed another
I-485 Application in April 2007 (id. ¶ 34).
two years later, the Director of the Vermont Service Center
of the USCIS issued a Notice of Intent to Revoke the approval
of Plaintiff's I-360 Petition because Plaintiff had
previously submitted erroneous information on the number of
times he had been married. (Id. ¶¶ 35-36).
Specifically, Plaintiff had indicated on his DS-15 form that
he had been married to a woman named Nazma Begum in
Bangladesh, but Plaintiff's Form G-325A (submitted in
support of his visa when he was married to Ms. Espinal)
indicated that he was getting married for the first time.
(Id. ¶ 37). Plaintiff contends that his DS-15
form was submitted in error and that he was never married to
Ms. Begum (or anyone else) before marrying Ms. Espinal.
(Id. ¶ 38). Plaintiff now challenges the
revocation of this I-360 Petition.
Federal Rule of Civil Procedure 12(b)(1), a court must grant
a motion to dismiss if it lacks subject matter jurisdiction.
See In re Schering Plough Corp. Intron/Temodar Consumer
Class Action, 678 F.3d 235, 243 (3d Cir. 2012). A party
bringing a motion under Rule 12(b)(1) may assert either a
“facial or factual challenge to the court's subject
matter jurisdiction.” See Gould Elecs., Inc. v.
United States, 220 F.3d 169, 176 (3d Cir. 2000). In a
facial attack, the moving party “challenges subject
matter jurisdiction without disputing the facts alleged in
the complaint, and it requires the court to “consider
the allegations of the complaint as true.” See
Davis, 824 F.3d at 346. In a factual attack, however,
the moving party “attacks the factual allegations
underlying the complaint's assertion of jurisdiction,
either through the filing of an answer or otherwise
presenting competing facts, and [the court may] weigh and
consider evidence outside the pleadings.” See
Id. (cleaned up).
Defendants assert a facial attack on subject matter
argue that the Court lacks subject matter jurisdiction
because Congress precluded judicial review of discretionary
decisions of the Secretary of Homeland Security under 8
U.S.C. § 1252(a)(2)(B)(ii), and the revocation of
Plaintiff's I-360 Petition is a discretionary ...