Mawalla v. Hoffman et al

Memorandum in opposition to re MOTION to Dismiss Plaintiff's Complaint

D.D.C.December 19, 2007

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FREDERICK MAWALLA ) ) Plaintiff, ) ) v. ) Case No.: 1:07-cv-01538 ) LINDA HOFFMAN, et al. ) ) Defendants, ) MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT COMES NOW, Plaintiff Frederick Mawalla, by and through his undersigned counsel, and opposes the Defendants’ Motion to Dismiss Plaintiff’s Complaint and states as following: STANDARD OF REVIEW A complaint may be dismissed for failure to state a claim only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Perez v. Goldin, 360 F. Supp.2d 12, 15 (D.D.C. 2003). When ruling on a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and must accept the Plaintiff’s allegations as true. Id. FACTUAL BACKGROUND 1. In 2001, Intelsat decided to switch their employees holding G-4 visas, including Mr. Mawalla, to permanent residents status. Complaint at ¶ 3. 2. Mr. Mawalla, upon Intelsat’s advice, retained Defendants as immigration counsel. Defendants were representing both Mr. Mawalla and Intelsat. Complaint at ¶¶ 4, 17. 3. On May 15, 2002, Defendants filed the I-140 Immigration Petition on behalf of Mr. Mawalla. Complaint at ¶ 20. It was approved by U.S. Citizenship and Immigration Services Case 1:07-cv-01538-EGS Document 7 Filed 12/19/2007 Page 1 of 9 1By virtue of his qualification, a visa was immediately available to Mr. Mawalla by virtue of his education and professional background. Complaint at ¶ 21. 2 (“USCIS”) on October 31, 2002. Mawalla v. Chertoff, Civ. No. 06-584, attached to Defendants’ Motion as “Exhibit 1" at 2 4. On July 31, 2002, the Immigration and Naturalization Service allowed concurrent filing of I-485 and I-140 for those petitioners for whom visas were immediately available1. See Allowing in Certain Circumstances for the Filing of Form I-140 Visa Petition Concurrently with a Form I-485 Application, INS No. 2104-00, RIN 1111-AGOO, 67 FR 49561, July 31, 2002, attached hereto as “Exhibit A.” This rule also allowed an alien worker, whose I-140 was pending when the rule went into effect, to file an I-485 immediately. See “Exhibit A” at 2. (“[U]pon issuance of this rule, an alien whose Form I-140 visa petition is pending with the service may file a Form I-485, together with associated forms and fees, with the Service office at which the visa petition was filed.”) 5. Defendants never filed an I-485 on behalf of Mr. Mawalla. Complaint at ¶41. 6. Mr. Mawalla was terminated from his job with Intelsat in late November 2002. Complaint at ¶5. 7. Defendants informed Mr. Mawalla that he was no longer eligible for adjustment of status. They attempted to obtain for Mr. Mawalla a B-2 (visitor) visa, which they ultimately failed to do. Complaint at ¶ ¶25-27. 8. Mr. Mawalla retained different immigration counsel. Complaint at ¶ 30. 9. In late 2003/early 2004, Mr. Mawalla was informed that his I-140 had not been revoked and he could apply for adjustment of status. Complaint at ¶ 31. 10. On April 29, 2004, Mr. Mawalla filed a Form I-484, Application to Adjust Status to Case 1:07-cv-01538-EGS Document 7 Filed 12/19/2007 Page 2 of 9 3 Permanent Resident. Complaint at ¶32; Mawalla v. Chertoff at 2. 11. In August 2004, Defendants advised Intelsat to withdraw Mr. Mawalla’s I-140 Petition. Complaint at ¶ 7. 12. Intelsat sent a letter dated August 20, 2004 to USCIS withdrawing Mr. Mawalla’s I-140 Petition. This letter listed Defendants as the recipient of the copy of this letter. Complaint at ¶ 33. 13. This letter was received by USCIS on September 17, 2004. Mawalla v. Chertoff at 2. 14. On March 11, 2005 USCIS sent Mr. Mawalla a Notice of Intent to Deny his I-485 application because of the revocation of his I-140. Id. 15. On April 6, 2005 Mr. Mawalla responded by including an offer of employment from Bethesda Asphalt & Bituminous Company. Id. His request was denied. Id. 16. Mr. Mawalla filed a Motion to Reopen and/or Reconsider on July 18, 2005 and another Motion to Reopen and/or Reconsider on March 13, 2006, both of which were denied. Id. at 3. 17. Mr. Mawalla filed Mawalla v. Chertoff, appealing the decision of USCIS on March 30, 2006. Id. 18. His appeal was denied in a Memorandum Opinion filed on January 5, 2007. The opinion stated: Now that the legal standard is clear, the Court can apply it to Plaintiff’s application. Plaintiff filed his I-485 application on April 29, 2004. Although, the record is silent as to when Mr. Mawalla left his employment at Intelsat, the record is clear that on September 17, 2004 Intelsat submitted a letter to USCIS that Plaintiff no longer worked there and that it wanted to withdraw its I-140 Petition. (AR 196.) Thus, it is beyond dispute that Mr. Mawalla’s job-change occurred on or before September 17, 2004 - 141 days after he filed his I-485 application. Because he changed jobs before his I-485 application had been pending for 180 day, Mr. Mawalla’s I-140 did not remain valid under AC21. USCIS therefore correctly denied his I-485 application on the ground that he did not have a valid and current visa to support his adjustment of status. The fact that USCIS did not actually adjudicate his application until June 2005 is of no moment because the 180 day provision pertains to the date of the Case 1:07-cv-01538-EGS Document 7 Filed 12/19/2007 Page 3 of 9 2By virtue of his qualification, a visa was immediately available to Mr. Mawalla by virtue of his education and professional background. Complaint at ¶ 21. 4 employment change, not the date of adjudication. Mawalla v. Chertoff at 10. 19. Mr. Mawalla filed this action on August 20, 2007. ARGUMENT I. PLAINTIFF STATES A CAUSE OF ACTION. Defendants, in their Motion, claim that Plaintiff fails to state a cause of action because “plaintiff’s alleged injury (his inability to obtain a visa, become a permanent resident and remain in this country) was not proximately caused by any alleged act or omission of his former immigration counsel.” This is patently incorrect. Defendants’ omissions began almost immediately upon the onset of their representation in 2002. On March 18, 2002, the Application for Alien Employment Certification was approved. On May 15, 2002, Defendants filed the I-140 Immigration Petition on behalf of Mr. Mawalla. On July 31, 2002, Immigration and Naturalization Service allowed concurrent filing of I-485 and I-140 for those petitioners for whom visas were immediately available2. See Allowing in Certain Circumstances for the Filing of Form I-140 Visa Petition Concurrently with a Form I-485 Application, INS No. 2104-00, RIN 1111-AGOO, 67 FR 49561, July 31, 2002, attached hereto as “Exhibit A.” This rule also allowed an alien worker, whose I-140 was pending when the rule went into effect, to file an I-485 immediately. See Exhibit A at 2. (“[U]pon issuance of this rule, an alien whose Form I-140 visa petition is pending with the Service may file Form I-485, together with associated forms and fees, with the Service office at which the visa petition was filed.”) Thus, Case 1:07-cv-01538-EGS Document 7 Filed 12/19/2007 Page 4 of 9 5 Defendants could have filed a Form I-485 on July 31, 2002. They did not do so -- in fact, they never filed the Form I-485 for him. Under Section 106(c) of the American Competitiveness in the Twenty-First Century Act (AC21), codified as 8 U.S.C. § 1154(j), [a] petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 [i.e. Form I-485] has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employees if the new job is in the same or a similar occupational classification as the job for which the petition was filed.” Even “if the employer withdraws the approved Form I-140 on or after the date that the Form I-485 has been pending 180 days, the approved Form I-140 shall remain valid under the provision of § 106(c) of AC21.” U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services, Memorandum for Service Center Directors, BCIS; Regional Directors, BCIS, Continuing Validity of Form I-140 Petition in accordance with Section 106(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), August 4, 2003, attached hereto as “Exhibit B,” at 3. See also analysis in Mawalla v. Chertoff. Defendants could and should have filed Mr. Mawalla’s I-485 in early August 2002, after the INS No. 2104-00 went into effect. Mr. Mawalla’s I-140 was approved on October 31, 2002, prior to his termination. If his I-485 was filed prior to his termination, he would have had a greater period of time to seek a new job and take advantage of his already approved I-140. Defendants’ omission did not end at failing to timely file Mr. Mawalla’s I-485. As clearly stated in the Mawalla v. Chertoff opinion, quoted in relevant parts supra, Mr. Mawalla’s immigration application was denied because Intelsat withdrew its I-140 Petition on September 17, Case 1:07-cv-01538-EGS Document 7 Filed 12/19/2007 Page 5 of 9 6 2004 and Mr. Mawalla’s I-485 was not pending for 180 days at the time of this withdrawal. If Intelsat had not withdrawn its I-140 petition on the eve of the expiration of the 180-day period, Mr. Mawalla’s I-485 would have been approved and he would have successfully adjusted his status. As alleged in the Complaint, Intelsat withdrew Mr. Mawalla’s I-140 upon Defendants’ advice. Intelsat copied defendants (at the time former counsel) on the letter notifying Plaintiff of the withdrawal of the I-140. Notwithstanding this evidence, this Court must accept all well-pled facts as true when considering a Rule 16(b)(6) motion. Although Intelsat was acting within its right to withdraw the I-140, Defendants were not entitled to give Intelsat advice to do so as it was clearly against Mr. Mawalla’s -- Defendants’ former client’s -- interests. But for Defendants’ advice, Intelsat would not have revoked Mr. Mawalla’s I-140 prior to the expiration of the 180-day period and Mr. Mawalla would have been able to adjust his status. Overall, Plaintiff clearly states a cause of action for both professional malpractice and breach of fiduciary duty. See e.g. Chase v. Glibert, 499 A. 2d 1203(D.C. 1985); O’Neil v. Bergan, 452 A.2d 337 (D.C. 1982). Defendants attempt to avoid liability by speculating that the Mawalla v. Chertoff court would have based its opinion on different reasoning were it aware of the fact that Mr. Mawalla was terminated in 2002. Defendants should not be able to rely on this speculation to spring themselves from answering the claims against them. The court never reached, nor had to reach, whether the date of actual separation from work or date on which the I-140 is actually revoked is controlling to calculate the 180-day period. II. PLAINTIFFS CLAIMS ARE NOT BARRED BY THE STATUTE OF LIMITATIONS. Defendants cannot meet the high bar to establish that the statute of limitations warrants Case 1:07-cv-01538-EGS Document 7 Filed 12/19/2007 Page 6 of 9 3Although, it appears from Mawalla v. Chertoff complaint that this letter was not received by Department of Homeland Security until 17, 2004. 7 dismissal of the claims against them. “If a statute of limitation bar is not apparent on the fact of the complaint, then it may not afford basis for dismissal under Rule 12(b)(6)” Rycoline Prods. v. C & W Unlimited, 109 F. 3d 883, 887 (3rd Cir. 1997)(internal quotation omitted). “In the District of Columbia, the statute of limitations governing a legal malpractice claim is three years [...] In such cases, the discovery rule provides that a claim does not accrue until a plaintiff knows, or by the exercise of the reasonable diligence should know, of (1) an injury, (2) its cause, and (3) some evidence of wrongdoing.” Wagner v. Sellinger, 847 A. 2d 1151, 1154 (D.C. Ct. App. 2004) (internal quotation omitted). Here, the key element of malpractice, injury, did not occur until at least August 20, 2004, when Intelsat, acting upon Defendants’ advice, revoked Mr. Mawalla’s I-1403. Similarly, Defendants’ breach of fiduciary duty did not occur until the same date, when Intelsat, acting upon Defendants’ advice, revoked Mr. Mawalla’s I-140 petition. Even if Defendants’ malpractice took place in 2002, Defendants’ failure to take advantage of the changes in the immigration law was not known to Plaintiff until he became aware of the August 20, 2004 letter at the earliest. Plaintiff could not have known of this breach of duty an earlier than this date. It is clearly alleged in the Complaint that after being terminated from Intelsat, Plaintiff did not know that Defendants did anything wrong as he continue to retain them to help obtain a B-2 visa. His hiring of the subsequent attorneys to pursue some options available to him does not put him on notice of Defendants’ omission. He retained his first attorney -- Mr. Rhodes -- to deal with his B-2 application. The Complaint does not state that she was retained to look through Case 1:07-cv-01538-EGS Document 7 Filed 12/19/2007 Page 7 of 9 8 the Defendants’ prior work. Similarly, his later immigration attorneys were there to investigate and pursue options available to him at the time he retained them -- not to conduct post factum analysis of Defendants’ prior representation. The letter dated August 20, 2004 from Intelsat to the U.S. Department of Homeland Security, which listed Defendants as recipients demonstrated to Plaintiff that Defendants were improperly affiliated with Intelsat. Complaint at ¶ 33. The realization that Defendants were working for/advising long-time client Intelsat and were involved in the revocation of his I-140 -- an adverse action even meaningless at this point -- triggered Mr. Mawalla’s inquiry that led to this lawsuit. This Complaint was timely filed on August 20, 2007. . CONCLUSION For the foregoing reasons, Defendants’ motion should be denied. Respectfully Submitted, __/s/_Matthew H. Simmons_______ Matthew H. Simmons, Esq. Simmons & Associates, Chartered 7347 Wisconsin Avenue Suite 200 Bethesda, Maryland 20814 (301) 986-8444 (Phone) (240) 597-0749 (Fax) Counsel for Plaintiff Case 1:07-cv-01538-EGS Document 7 Filed 12/19/2007 Page 8 of 9 9 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Memorandum in Opposition of Motion of Defendants to Dismiss Plaintiffs’ Complaint was served by ECF and electronic mail on December 19, 2007 to the following address: Laura N. Steel Kathleen H. Warin The Colorado Building, Suite 500 1341 G. Street, N.W. Washington, D.C. 20005 Counsel for Defendants __/s/_Matthew H. Simmons____ Matthew H. 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