United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., DISTRICT JUDGE
matter comes before the court on Defendants' Motion to
Dismiss. (Doc. 7.) Plaintiffs, proceeding pro se, were issued
Roseboro letters advising them of their right to respond.
(See Docs. 8-9.) Plaintiffs have not responded, the time to
respond has run, and the matter is now ripe for resolution.
Local Rule 7.3(k), failure to file a response within the
required timeframe constitutes a waiver of the right to file
such response, except upon a showing of excusable neglect. LR
7.3(k). “If a respondent fails to file a response
within the time required by this rule, the motion will be
considered and decided as an uncontested motion, and
ordinarily will be granted without further notice.”
Id. Plaintiffs were advised of the possibility of
adverse action if they failed to respond, including the
likelihood that the “case will be dismissed.”
court strictly construes application of the Local Rules and
determines that Defendants' motion may be deemed
uncontested and granted on procedural grounds alone. Because
of Plaintiffs' pro se status, this court has reviewed
Defendants' motion and determines that it should also be
granted because Plaintiffs' claims are moot and/or not
ripe. Consequently, this court will grant the
motion and dismiss Plaintiffs' Complaint.
Yan Zheng and Shu Yun Zhang (“Plaintiffs” or
“Ms. Zheng” or “Mr. Zhang”) are
residents of North Carolina and aliens who are granted asylum
in the United States. (Complaint for a Civil Case
(“Compl.”) (Doc. 1) at 1-2, 9.) Plaintiffs seek
to compel Defendants U.S. Attorney General Jefferson B.
Sessions III (“Attorney General”); Secretary of
the U.S. Department of Homeland Security (“DHS”)
Kirstjen M. Nielsen; Director of U.S. Citizenship and
Immigration Services (“USCIS”) L. Francis Cissna;
and USCIS Acting Raleigh-Durham Field Office Director Marcos
Castells (collectively, “DHS Defendants”) to
adjudicate their then-pending I-485 adjustment applications.
(See Id. at 3-5, 7-11.) Plaintiffs invoke two bases
of jurisdiction: (1) federal question jurisdiction under 28
U.S.C. § 1331, bringing a cause of action under the
Administrative Procedure Act, 5 U.S.C. §§ 555(b),
706, and (2) mandamus under 28 U.S.C. § 1361.
(Id. at 7.)
allege the following: On December 5, 2011, Ms. Zheng was
granted asylum in the United States. (Id. at 9.) On
December 17, 2012, Ms. Zheng filed an I-485 Application to
Register Permanent Residence or Adjust Status. (Id.)
On December 2, 2016, Ms. Zheng attended a USCIS InfoPass
Appointment in North Carolina, was issued an I-94 card, and
directed to send her I-485 application to a certain e-mail
address. (Id.) On January 4, 2017, Ms. Zheng was
advised to send her I-485 form to a different location.
(Id.) On August 20, 2012, Mr. Zhang was granted
asylum in the United States based on an I-730 Refugee/Asylee
Relative Petition filed by his wife, Ms. Zheng.
(Id.) On September 25, 2013, Mr. Zhang filed an
I-485 Application to Register Permanent Residence or Adjust
Status. (Id.) On December 2, 2016, Ms. Zheng
attended a USCIS InfoPass Appointment in North Carolina
regarding the status of Mr. Zhang's I-485 application.
(Id. at 10.) The applications were pending at the
time of the Complaint. (Id.)
12, 2017, Defendants filed a Motion to Extend Time to Answer
because USCIS had determined Ms. Zheng's 2011 grant of
asylum was likely based on fraud, and DHS had filed a motion
to reopen Ms. Zheng's removal proceedings and terminate
her asylum status. (Doc. 6.) The extension was granted on
July 11, 2017. On August 10, 2017, Ms. Zheng's removal
proceedings were reopened “for a determination on
whether her current immigration status as an asylee will be
terminated by the Executive Office for Immigration Review
(“EOIR”).” (Brief in Support of Motion to
Dismiss (“Defs.' Br.”) (Doc. 10) at 2.) On
September 20, 2017, in response to the reopened removal
proceedings, USCIS administratively closed Ms. Zheng's
I-485 application for lack of jurisdiction. (Id. at
3.) USCIS retained jurisdiction over Mr. Zhang's I-485
application and placed it in abeyance pending the outcome of
Ms. Zheng's removal proceedings. (Id.)
Defendants allege that this court now lacks subject matter
jurisdiction over Plaintiffs' claims because they have
been mooted by changed factual circumstances since the filing
of the Complaint. (Id. at 1, 6-10.)
. . . a defendant challenges the existence of subject matter
jurisdiction in fact, the plaintiff bears the burden of
proving the truth of such facts by a preponderance of the
evidence.” U.S. ex rel. Vuyyuru v. Jadhav, 555
F.3d 337, 347 (4th Cir. 2009) (citation omitted).
“[T]he district court may then go beyond the
allegations of the complaint and resolve the jurisdictional
facts in dispute by considering evidence outside the
pleadings . . . .” Id. at 348 (citation
omitted). If subject matter jurisdiction is lacking, the
complaint must be dismissed. Arbaugh v. Y & H
Corp., 546 U.S. 500, 514 (2006).
plaintiff must “establish throughout all stages of
litigation (1) that he is suffering an injury-in-fact or
continuing collateral consequence, (2) that his injury is
fairly traceable to the challenged action or decision, and
(3) that a favorable decision would be likely to redress his
injury.” Townes v. Jarvis, 577 F.3d 543, 554
(4th Cir. 2009) (footnote and citations omitted) (emphasis
removed). “When a case or controversy ceases to exist,
the litigation is moot, and the court's subject matter
jurisdiction ceases to exist also.” S.C. Coastal
Conservation League v. U.S. Army Corps of Eng'rs,
789 F.3d 475, 482 (4th Cir. 2015) (citing Iron Arrow
Honor Soc'y v. Heckler, 464 U.S. 67, 70 (1983) (per
curiam)). “A case can become moot due either to a
change in the facts or a change in the law.”
Id. (citation omitted). Courts have held that a case
is moot where a plaintiff seeks to compel adjudication of an
adjustment application which is then closed. See, e.g.,
Gonzalez v. Mayorkas, No. 1:13-cv1230, 2014 WL
585863, at *2, *6 (E.D. Va. Feb. 12, 2014), aff'd sub
nom. Gonzalez v. Zannotti, 585 Fed.Appx. 130 (4th
Cir. 2014) (per curiam).
seek to compel Defendants to adjudicate their pending I-485
adjustment applications. (Compl. (Doc. 1) at 5, 10-11.) Under
8 U.S.C. § 1159(a), either the Secretary of Homeland
Security or the Attorney General has jurisdiction to adjust
an asylee's status, depending on the circumstance.
Id. The spouse of an asylee is granted derivative
asylum status based on the status of the primary asylee. See
8 C.F.R. §§ 208.21, 208.24(d).
Secretary, through UCSIS, “has jurisdiction to
adjudicate an application for adjustment of status filed by
any alien, unless the immigration judge has jurisdiction to
adjudicate the application under 8 C.F.R. §
1245.2(a)(1).” 8 C.F.R. § 245.2 (emphasis added).
Section 1245.2(a)(1), in turn, provides that the Department
of Justice (“DOJ”) and the Attorney General,
through delegation to immigration judges in the EOIR, has
“exclusive jurisdiction to adjudicate any application
for adjustment of status” that an alien in removal
proceedings may file. See 8 C.F.R. § 1245.2(a)(1).
Therefore, when an alien's adjustment application is
pending with UCSIS, and removal proceedings are reopened
against that person, UCSIS loses and EOIR gains jurisdiction
over any application for adjustment of status. The person may
then reapply for relief via the adjustment of status
application during the removal proceedings. See 8 C.F.R.
§ 209.2 ...