Salahi v. Ow

• Court: District Court, S.D. California
• Decided: August 4, 2022
• Docket: 3:21-cv-01333
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SALIM AMIN SALAHI, Case No. 21cv1333–LAB–JLB

12 Plaintiff, ORDER GRANTING MOTION TO DISMISS FOR LACK OF 13 v. JURISDICTION [Dkt. 4] 14 ALANNA Y. OW, et al., 15 Defendants. 16

17 Plaintiff Salim Amin Salahi filed this action for a writ of mandamus seeking 18 to compel the adjudication of his Form I-485 Application for Adjustment of Status 19 (“I-485”). He named the following individuals as Defendants: Alanna Y. Ow, District 20 Director, U.S. Citizenship and Immigration Services (“USCIS”); Alejandro 21 Mayorkas, Secretary of the Department of Homeland Security (“DHS”); and 22 Merrick Garland, U.S. Attorney General (collectively, “Defendants”). Defendants 23 now move to dismiss the complaint on the ground that the case is moot because 24 USCIS denied Salahi’s I-485 on May 18, 2022. (Dkt. 4). Salahi didn’t oppose the 25 motion. For the following reasons, the motion is GRANTED. 26 I. BACKGROUND 27 Salahi, a native of Egypt and citizen of Jordan, was admitted to the United 28 States on a F-1 student visa in January 1996. (Dkt. 1, Complaint (“Compl.”) ¶ 1). 1 On April 22, 2009, Salahi married Lilyan Kahina Hassaine, a U.S. citizen, who filed 2 a Form I-130 Petition for Alien Relative (“Spousal Petition”) with USCIS on Salahi’s 3 behalf. (Id. ¶¶ 6–7). The Spousal Petition was approved. (Id. ¶ 8). Then, on 4 November 29, 2019, Salahi filed a I-485 application for adjustment of status based 5 on the approval of his prior Spousal Petition. (Id. ¶ 9). He was interviewed by 6 USCIS on April 29, 2021. (Id. ¶ 11). 7 On July 24, 2021, Salahi commenced this action for a writ of mandamus, 8 arguing that as of the date of the Complaint, USCIS had unlawfully withheld or 9 unreasonably delayed the adjudication of his I-485 application. (See generally 10 Compl.). He presently seeks an order from the Court compelling USCIS to 11 adjudicate his I-485 application and process the case to its conclusion. (Id.). In 12 response, Defendants filed a Motion to Dismiss the Complaint as moot because, 13 since the filing of the Complaint, Salahi’s I-485 application has been denied and 14 the Court therefore lacks subject matter jurisdiction over the case. (Dkt. 4). Salahi 15 did not file a response. 16 II. LEGAL STANDARD 17 Federal courts are courts of limited jurisdiction, possessing only that power 18 “authorized by Article III of the United States Constitution and statutes enacted by 19 Congress pursuant thereto.” See Bender v. Williamsport Area Sch. Dist., 475 U.S. 20 534, 541 (1986). “Because standing and mootness both pertain to a federal court’s 21 subject-matter jurisdiction under Article III, they are properly raised in a motion to 22 dismiss under Federal Rule of Civil Procedure 12(b)(1), not Rule 12(b)(6).” White 23 v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). 24 On a Rule 12(b)(1) motion to dismiss, the party asserting subject matter 25 jurisdiction bears the burden of proof that jurisdiction exists. Sopak v. Northern 26 Mountain Helicopter Serv., 52 F.3d 817, 818 (9th Cir. 1995). A defendant may 27 either challenge jurisdiction on the face of the complaint or provide extrinsic 28 evidence demonstrating lack of jurisdiction on the facts of the case. White v. Lee, 1 227 F.3d 1214, 1242 (9th Cir. 2000). A facial challenge asserts that “the allegations 2 contained in a complaint are insufficient on their face to invoke federal jurisdiction.” 3 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In contrast, 4 a factual attack disputes “the truth of the allegations that, by themselves, would 5 otherwise invoke federal jurisdiction.” Id. at 1039. A factual challenge permits the 6 court to look beyond the complaint, without “presum[ing] the truthfulness of the 7 plaintiff’s allegations.” White, 227 F.3d at 1242 (citation omitted). 8 III. DISCUSSION 9 Defendants argue that the case is moot because USCIS has adjudicated 10 Salahi’s I-485 application. 11 Under Article III of the Constitution, federal courts may only adjudicate live 12 controversies. See Already, LLC v. Nike, Inc., 568 U.S. 85, 89–90 (2013); Alvarez 13 v. Smith, 558 U.S. 87, 92 (2009). “Mootness is a jurisdictional issue, and federal 14 courts have no jurisdiction to hear a case that is moot, that is, where no actual or 15 live controversy exists.” Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003) 16 (citation and quotation marks omitted). A plaintiff “must have suffered, or be 17 threatened with, an actual injury traceable to the defendant and likely to be 18 redressed by a favorable judicial decision.” Lewis v. Continental Bank Corp., 494 19 U.S. 472, 477 (1990). 20 Defendants contend that Salahi’s application was denied, and thus fully 21 adjudicated, in May 2022. In support, Defendants attach the decision issued by 22 the USCIS. (See Dkt. 4-1). It states that, in reaching its decision, USCIS reviewed 23 Salahi’s April 29, 2021 interview testimony and the evidence supporting Salahi’s 24 application, and considered various factors, including but not limited to, Salahi’s 25 criminal history, community standing, moral character, and immigration history. 26 (Id. at 2). USCIS ultimately concluded that Salahi has “not met the burden of 27 demonstrating to USCIS that [he] warrant[s] a favorable exercise of discretion,” 28 and that he’s not “eligible for adjustment under INA 245.” (Id. at 4). The decision 1 cannot be appealed, but Salahi could have filed a motion to reopen or reconsider 2 his application within thirty days of the issuance of the decision. (Id. at 5). 3 Salahi doesn’t dispute that his application was denied, nor does he suggest 4 that a motion to reopen or reconsider his application is currently pending. In fact, 5 he doesn’t respond to Defendants’ motion at all, which alone should warrant 6 dismissal of this action. See CivLR 7.1(f)(3)(C) (failure to file an opposition to a 7 motion “may constitute a consent to the granting of a motion or other request for 8 ruling by the Court”); see also Jenkins v. Cnty. of Riverside, 398 F.3d 1093, 1095 9 n.3 (9th Cir. 2005) (holding that plaintiff “abandoned her other two claims by not 10 raising them in opposition to the [defendant]’s motion for summary judgment”); 11 Larson-Valentine v. Travelers Com. Ins. Co., No. 19CV1209-GPC(AGS), 2019 WL 12 3766562, at *1 (S.D. Cal. Aug. 9, 2019) (“Plaintiff did not file an opposition. 13 Therefore, Plaintiff’s failure to oppose constitutes a waiver or abandonment of the 14 issues raised in Defendant’s motion.”). 15 Regardless, Salahi’s mandamus claim is moot because there is no other 16 relief that this Court can provide. Lewis, 494 U.S. at 477; Foster v. Carson, 347 17 F.3d 742, 745 (9th Cir. 2003) (“Where the activities sought to be enjoined already 18 have occurred, and the appellate courts cannot undo what has already been done, 19 the action is moot, and must be dismissed.”) (citations omitted); see also 20 Akimenko v. Mayorkas, No. 21-CV-03738-DMR, 2022 WL 1539519, at *4 (N.D. 21 Cal. May 16, 2022) (“USCIS adjudicated the I-485 application and it is no longer 22 pending. Therefore, his request for a writ of mandamus compelling Defendants to 23 act on the application is moot.”) 24 IV. CONCLUSION 25 Defendants’ motion to dismiss the complaint is GRANTED and Salahi’s 26 Complaint for a writ of mandamus is DISMISSED. Because leave to amend may 27 be denied where, as here, the amendment would be futile or the amended 28 1 ||complaint would be subject to dismissal, the Court DENIES Salahi leave to 2 ||amend. 3 The Clerk of Court is directed to terminate this case. 4 IT IS SO ORDERED. 5 Dated: August 4, 2022 laud Ae (Buywy 6 Honorable Larry Alan Burns 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28