Cherif v. Department of Homeland Security (District Counsel)

378 F. App'x 72

• Court: Court of Appeals for the Second Circuit
• Decided: May 24, 2010
• Docket: 09-3719-cv
• Status: Unpublished

Opinion

SUMMARY ORDER

Plaintiff, a native and citizen of Cote d’Ivoire who proceeded pro se throughout these proceedings, appeals the June 5, 2009, 2009 WL 1619903, decision of the district court dismissing his complaint. We presume the parties’ familiarity with the facts, the procedural history, and the issues in the appeal.

Plaintiff commenced this action seeking an order directing the government to reopen the proceedings that led to the denial of his visa application. In a May 3, 2006 Report and Recommendation, a magistrate judge recommended that the district court transfer the matter to this Court pursuant to 28 U.S.C. § 1631. By order dated June 5, 2009, however, the district court declined that course and instead dismissed the complaint. Cherif v. Dep’t of Homeland Sec., No. 04 Civ. 5727, 2009 WL 1619903 (S.D.N.Y. June 5, 2009). In declining to transfer, the court held that the “REAL ID Act ... requires such transfers [to the Court of Appeals] only where the action seeks review of a final order of removal,” but that “Plaintiff sought only to compel the Associate Commissioner to reopen the decision revoking the approval of his visa petition.” Id. at *2. The district court reasoned further that, even if the complaint was construed as a challenge to a subsequent order that he be removed from the country, this Court would lack jurisdiction over any challenge to that order because plaintiff failed to exhaust his administrative remedies before the Board of Immigration Appeals. See id. at *3 n. 3.

Finally, in dismissing the action, the district court found the complaint insufficient, noting that although it sought an order compelling the agency to reopen the visa petition proceedings, both the complaint and the agency’s records showed that the motion to reopen had in fact been granted. The court ruled that the fact that the agency had, after reopening the proceedings, decided to adhere to its original decision afforded plaintiff no grounds for relief.

We review de novo the district court’s legal conclusions regarding the legal sufficiency of plaintiffs complaint, see Ajlani v. Chertoff, 545 F.3d 229, 233 (2d Cir.2008), and we review for abuse of discretion the district court’s decision declining to transfer the action to this Court pursuant to 28 U.S.C. § 1631, see Paul v. INS, 348 F.3d 43, 46 (2d Cir.2003). In doing so, we are mindful of plaintiffs pro se status and therefore liberally construe his pleadings and submissions. Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009). Nevertheless, having conducted a thorough and independent review of the record, as well as considered all of plaintiffs arguments on this appeal, we affirm for reasons substantially similar to those stated by the district court.

Accordingly, the judgment of the district court is AFFIRMED.