Opinion
8:23-cv-00315-HMH-JDA
02-02-2023
Jin Chen, Plaintiff, v. Alejandro Mayorkas, Secretary of Department of Homeland Security; Merrick Garland, United States Attorney General; Kirt Thompson, Director of USCIS Texas Service Center, Defendants.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
Jin Chen (“Plaintiff”), proceeding pro se, brings this civil action against the abovenamed Defendants. All pretrial proceedings in this matter were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e), D.S.C. Having reviewed the Complaint in accordance with applicable law, the undersigned concludes that this action should be dismissed for lack of jurisdiction.
On page 1 of the Complaint, Plaintiff avers that the pleading is filed “by and through counsel.” [Doc. 1 at 1.] However, the Complaint is signed by Plaintiff alone and neither the pleadings nor any other filing on the docket suggest that Plaintiff is represented by counsel in this matter at this time. Accordingly, the undersigned concludes that Plaintiff is proceeding pro se in this action.
BACKGROUND
Plaintiff commenced this action by filing a Complaint, which was entered on January 23, 2023. [Doc. 1.] Plaintiff is a native and citizen of the People's Republic of China. [Id. ¶ 3.] She presently resides in Clemson, South Carolina. [Id. ¶ 4.] On October 16, 2020, the United States Citizenship and Immigration Services (“USCIS”) received Plaintiff's I-485 application to register for permanent residence or adjust status (the “I-485 application”). [Id. ¶ 9.] Plaintiff's I-485 application remains pending before the USCIS Texas Service Center. [Id. ¶ 8.] Plaintiff contends that she meets the criteria to qualify for adjustment of status to that of a lawful permanent resident and has submitted all of the necessary documents and information along with her 1-485 application. [Id. ¶¶ 10-11.] Plaintiff contends that USCIS is in possession of all information needed to adjudicate her I-485 application, has not issued any notice requesting additional evidence, and has acknowledged receipt of Plaintiff's I-485 application and supporting documents. [Id. ¶¶ 11-12.] Plaintiff contends that she has attempted to resolve this matter without the need for court involvement, but to no avail. [Id. ¶ 13.]
Based on these allegations, Plaintiff asserts the following three claims for relief. In Count One, Plaintiff alleges that the continuing failure of the USCIS to adjudicate her I-485 application violates the Administrative Procedure Act's (“APA”) requirement that agencies proceed with reasonable dispatch to adjudicate the matters presented to them. [Id. ¶¶ 14-16.] In Count Two, Plaintiff alleges that the continuing failure of the USCIS to adjudicate her I-485 application violates her Due Process rights under the Fifth Amendment. [Id. ¶¶ 17-18.] In Count Three, Plaintiff alleges that the continuing failure of the USCIS to adjudicate her I-485 application to adjust her status constitutes irreparable harm. [Id. ¶¶ 19-20.] For her relief, Plaintiff asks the Court to declare the failure of the USCIS to adjudicate her I-485 application to adjust her status to be unlawful and to order Defendants to adjudicate her I-485 application forthwith. [Id. at 6.]
STANDARD OF REVIEW
Because Plaintiff is a pro se litigant, her pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, even under this less stringent standard, Plaintiff's Complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for her, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Further, this Court possesses the inherent authority to review pro se pleadings to ensure that subject matter jurisdiction exists and that a case is not frivolous. See Ferguson v. Wooton, 741 Fed.Appx. 955 (4th Cir. 2018) (collecting cases and explaining that “[f]rivolous complaints are subject to dismissal pursuant to the district court's inherent authority, even when the plaintiff has paid the filing fee” and that “dismissal prior to service of process is permissible when a court lacks subject matter jurisdiction”); Doiley v. Lieber Corr. Inst., No. 2:07-cv-3969-PMD, 2008 WL 190637, at *1 (D.S.C. Jan. 17, 2008) (explaining a plaintiff's “claims are subject to an initial sua sponte review by the Court pursuant to the Court's inherent authority to ensure that subject matter jurisdiction exists” even where the pro se plaintiff paid the filing fee and did not seek to proceed in forma pauperis).
DISCUSSION
Allegations Regarding Jurisdiction
Plaintiff alleges this Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1337, and 1361. [Doc. 1 at 1.] Plaintiff brings this action under the Court's federal question jurisdiction, as she asserts claims arising under the Immigration and Nationality Act of 1952 (“INA”), 8 U.S.C. §§ 1101, et seq.; the APA, 5 U.S.C. §§ 551, et seq.; and the mandamus statute, 28 U.S.C. § 1361. [Id.] Plaintiff contends the Court has authority to grant her requested relief under the Declaratory Judgement Act, 28 U.S.C. §§ 2201, et seq.; the INA; the APA; and 28 U.S.C. § 1361. [Id.]
Jurisdiction Generally
Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Accordingly, a federal court is required to determine if “a valid basis for its jurisdiction exists, and to dismiss the action if no such ground appears.” Id.; see also Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). There is no presumption that a federal court has jurisdiction over a case, Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999), and a plaintiff must allege facts essential to show jurisdiction in his pleadings, McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); see also Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir. 1985) (“[P]laintiffs must affirmatively plead the jurisdiction of the federal court.”). As such, Federal Rule of Civil Procedure 8(a)(1) requires that the complaint provide “a short and plain statement of the grounds for the court's jurisdiction.”
Generally, federal district courts have original jurisdiction over two types of cases, referred to as (1) federal question cases, pursuant to 28 U.S.C. § 1331, and (2) diversity cases, pursuant to 28 U.S.C. § 1332. Section 1331 provides that “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “[F]ederal question jurisdiction exists ‘only when a federal question is presented on the face of the plaintiff's properly-pleaded complaint.'” Burbage v. Richburg, 417 F.Supp.2d 746, 749 (D.S.C. 2006) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)).
Analysis
The undersigned concludes that Plaintiff's allegations in the Complaint are insufficient to establish subject matter jurisdiction in this Court. “Congress [has] stripped courts' jurisdiction over discretionary ‘decision[s] or action[s]' made by the Attorney General or Secretary of Homeland Security that relate to certain immigration issues.” Zhang v. Chertoff, 491 F.Supp.2d 590, 591-92 (W.D. Va. 2007) (some alterations in original) (quoting 8 U.S.C.A. § 1252(a)(2)(B)(ii)). “The adjustment of an alien's status is, by law, such an immigration issue left to the discretion of the Attorney General.” Id. (citing 8 U.S.C.A. § 1255(a)). In evaluating claims similar to the present case, courts have held that § 1252(a)(2)(B)(ii) divests the federal district courts of jurisdiction over such claims because § 1255(a) gives “USCIS discretion over the entire application process, including its pace.” Id. at 594; see also Patel v. Gonzales, No. DKC 2007-1625, 2008 WL 11509689, at *3 (D. Md. Mar. 31, 2008) (explaining discretionary actions include the entire process of viewing an adjustment application, including the pace at which the process proceeds and holding that 8 U.S.C. § 1252(a)(2)(B)(ii) effectively divests th[e] court of jurisdiction to review the pace at which USCIS adjudicates claims”); Baqai v. Chertoff, No. DKC 2007-0322, 2008 WL 11509718, at *4 & n.5 (D. Md. Mar. 28, 2008) (“A growing number of trial courts have dismissed similar actions for lack of subject mater jurisdiction, under the rationale that 8 U.S.C. §§ 1255(a) and 1252(a)(2)(B)(ii), of the [INA], preclude judicial review of any discretionary ‘decision or action' of the Attorney General in immigration matters, including the pace of review of an I-485 application.”) (collecting cases); Shalev v. Gonzales, No. PJM-07-cv-256, 2007 WL 9782605, at *1 (D. Md. Sept. 24, 2007) (“A district court is precluded from exercising jurisdiction to compel USCIS to adjudicate the I-485 application under the mandamus statute, the [APA], or the Declaratory Judgment Act.”).
The undersigned recognizes that there is a split of authority on this issue. See, e.g., Aslam v. Mukasey, 531 F.Supp.2d 736, 740 (E.D. Va. 2008) (discussing the conflicting authority and finding the court had jurisdiction). However, the undersigned agrees with the sound reasoning of the cases cited herein.
In sum, § 1255(a) vests USCIS with discretion over the entire process of adjustment application adjudication. As such, § 1252(a)(2)(B)(ii) precludes judicial review of any “action,” meaning any act or series of acts, included within the ongoing adjudication process and the pace at which that action proceeds.
This conclusion sufficiently disposes of this matter on jurisdictional grounds.Safadi v. Howard, 466 F.Supp.2d 696, 700 (E.D. Va. 2006).
Accordingly, because the Court lacks subject matter jurisdiction over this action, this case should be dismissed.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the District Court dismiss this action for lack of subject matter jurisdiction.
The undersigned finds that Plaintiff cannot cure the defects in the Complaint by mere amendment and therefore recommends that the instant action be dismissed without affording Plaintiff an opportunity to amend. Specifically, the undersigned concludes that any amendment would be futile as the Plaintiff is unable to cure the jurisdictional defects of her claims. See Thomas v. Drive Auto. Indus. of Am., Inc., No. 6:18-cv-169-AMQ, 2018 WL 5258811, at *2 (D.S.C. July 25, 2018) (declining to automatically give plaintiff leave to amend because plaintiff could not cure the defects in his claims against defendant by mere amendment), Report and Recommendation adopted by 2018 WL 5255183 (D.S.C. Oct. 22, 2018); Workman v. Kernell, No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 (D.S.C. Oct. 2, 2018), aff'd, 766 Fed.Appx. 1 (4th Cir. 2019).
IT IS SO RECOMMENDED.
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).