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Islam v. Rodriguez

United States District Court, D. New Jersey

January 25, 2018

SHAHEDUL ISLAM, Plaintiff,
v.
LEON RODRIGUEZ, et al., Defendants.

          MEMORANDUM

          ESTHER SALAS, U.S.D.J.

         Pending before the Court is Defendants James McCament, [1] 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.

         I. DISCUSSION

         A. Background

         The parties are familiar with the facts and procedural posture of this case, so the Court will be brief.[2] 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).

         In 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).

         Plaintiff 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).

         Plaintiff 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).

         About 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.

         B. Legal Standard

         Under 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).

         Here, Defendants assert a facial attack on subject matter jurisdiction.

         C. Analysis

         Defendants 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 ...


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