Saleh v. Pastore

• Court: Court of Appeals for the Second Circuit
• Decided: October 27, 2021
• Docket: 21-1073
• Status: Unpublished

Opinion

21-1073 Saleh v. Pastore

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of October, two thousand twenty-one.

PRESENT: Dennis Jacobs, Steven J. Menashi, Circuit Judges Lewis J. Liman, District Judge. * ____________________________________________

TAREK YOUSSEF HASSAN SALEH,

Plaintiff-Appellant,

v. No. 21-1073

*Judge Lewis J. Liman of the United States District Court for the Southern District of New York, sitting by designation. GINA PASTORE, as Brooklyn Field Office Director U.S. Citizenship and Immigration Services, SUSAN QUINTANA, as New York City Field Office Director U.S. Citizenship and Immigration Services, LEE BOWES, as Acting Field Office Director, Northeast Region, USCIS, TRACY RENAUD, Acting Director, USCIS, Alejandro Mayorkas, Secretary U.S. Department of Homeland Security, CHRISTOPHER A. WRAY, Director Federal Bureau of Investigation, MERRICK B. GARLAND, Attorney General U.S. Department of Justice,

Defendants-Appellees.

____________________________________________

For Plaintiff-Appellant: Tarek Youssef Hassan Saleh, pro se, Staten Island, NY

For Defendants-Appellees: Joshua Kahane, Christopher Connolly, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY

Appeal from a judgment of the United States District Court for the Southern

District of New York (Failla, J.).

2 Upon due consideration, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

Appellant Tarek Saleh, proceeding pro se, sued officers of United States

Citizenship and Immigration Services (“USCIS”) and other government officials,

alleging violations of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101

et seq.; the Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq.; and Saleh’s

Fifth Amendment right to due process, U.S. Const. amend. V, as well as unlawful

interference with Congress’s power to establish a uniform rule of naturalization,

U.S. Const. art. I, § 8, cl. 4. Saleh sought an order (1) compelling USCIS to

adjudicate his Application for Naturalization (Form N-400) and (2) enjoining

USCIS from employing the Controlled Application Review and Resolution

Program (“CARRP”) in conducting that adjudication. While the case was pending,

USCIS denied Saleh’s Form N-400, and Saleh administratively appealed the

decision by filing a Request for a Hearing on a Decision in Naturalization

Proceedings (Form N-336).

The district court subsequently dismissed the complaint in part as moot and

in part for Saleh’s failure to exhaust his administrative remedies. It also denied

Saleh’s motions for recusal, for a hearing on his then-pending naturalization

3 application under 8 U.S.C. § 1447(b), and for an order directing USCIS to hold a

hearing on Saleh’s administrative appeal and to issue an opinion within 180 days

of the hearing. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

I

When reviewing a dismissal under Federal Rule of Civil Procedure 12(b)(1),

“we review factual findings for clear error and legal conclusions de novo.” Makarova

v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

The district court properly dismissed Saleh’s claims related to his Form

N-400 as moot. “A case is moot when the issues presented are no longer live or the

parties lack a legally cognizable interest in the outcome.” Tann v. Bennett, 807 F.3d

51, 52 (2d Cir. 2015) (internal quotation marks omitted). “In the immigration and

naturalization context, courts have dismissed cases as moot where the executive

agency to which the plaintiff has applied grants the relief sought in the complaint

prior to the court’s adjudication.” Li v. Napolitano, No. 08-CV-7353, 2009 WL

2358621, at *3 (S.D.N.Y. July 30, 2009) (collecting cases).

Saleh sought an order directing USCIS to schedule a naturalization

interview and to adjudicate his Form N-400 application. On February 18, 2020,

4 USCIS interviewed Saleh and then, on August 31, 2020, issued its denial of Saleh’s

application. Accordingly, any claim seeking to compel USCIS to adjudicate Saleh’s

application became moot because “the relief sought can no longer be given or is

no longer needed.” Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983). 1

Saleh argues that his case cannot be dismissed on mootness grounds

because USCIS lost the power to adjudicate his claims when he filed his § 1447(b)

petition. Although a “properly filed Section 1447(b) petition vests jurisdiction in

the district court and divests USCIS of its jurisdiction to decide the application,”

Saleh did not properly file a § 1447(b) petition. Bustamante v. Napolitano, 582 F.3d

403, 406 (2d Cir. 2009). After USCIS fails to make a determination on a Form N-400

within 120 days of an applicant’s examination, the applicant “may apply to the

United States district court for the district in which the applicant resides for a hearing

on the matter.” 8 U.S.C. § 1447(b) (emphasis added). It is undisputed that Saleh

resides in Richmond County, which is within the Eastern District of New York. See

28 U.S.C. § 112(c). Because he sought review in the Southern District of New York,

1 Moreover, any claim that the district court should have granted Saleh’s request for a hearing under 8 U.S.C. § 1447(b)—or transferred the case to the Eastern District of New York for such a hearing—is moot because Saleh’s naturalization application has been denied.

5 Saleh did not “properly file[]” his section 1447(b) petition, and therefore his

petition did not “divest[] USCIS of its jurisdiction to decide [his] application.”

Bustamante, 582 F.3d at 406.

II

The district court also properly found that Saleh’s request for mandamus

relief directing USCIS to schedule a hearing on his Form N-336 administrative

appeal is moot. USCIS has 180 days after the date an administrative appeal is filed

to schedule a hearing. 8 C.F.R. § 336.2(b). Saleh filed his Form N-336 appeal on

September 1, 2020, and the hearing—which Saleh opted not to attend—was

scheduled for February 24, 2021, within the 180-day deadline.

In addition, the district court did not err by denying Saleh’s motion for an

order directing the USCIS to issue a decision within a specific timeframe. Saleh

cannot obtain mandamus relief directing USCIS to issue a decision on his Form N-

336 appeal according to a prescribed timeline. “[M]andamus is an extraordinary

remedy, intended to aid only those parties to whom an official or agency owes ‘a

clear nondiscretionary duty.’” Escaler v. USCIS, 582 F.3d 288, 292 (2d Cir. 2009)

(quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)). Saleh does not identify any

6 statute or regulation setting out a timeline for a USCIS decision on a Form N-336

appeal.

III

The district court properly dismissed the remainder of Saleh’s claims—

brought under the INA, the APA, and the Constitution—concerning the purported

adjudication of his naturalization application through CARRP. To obtain judicial

review of a naturalization application an applicant must exhaust his

administrative remedies before filing suit. See Escaler, 582 F.3d at 292 (“[J]udicial

review of the denial of an application to be naturalized[] requires the exhaustion

of administrative remedies prior to seeking that relief.”); see also 8 U.S.C. § 1421(c)

(providing a cause of action for a person whose application for naturalization has

been denied “after a hearing before an immigration officer under section 1447(a)”).

The APA and constitutional claims are likewise subject to the INA’s exhaustion

requirement. See Moya v. DHS, 975 F.3d 120, 126-27 (2d Cir. 2020). This exhaustion

requirement is “mandatory, and courts are not free to dispense with it.” Escaler,

582 F.3d at 292. At the time Saleh filed his complaint, USCIS had not yet denied

his Form N-400 application. The district court therefore properly dismissed these

claims because Saleh failed to exhaust his administrative remedies prior to seeking

7 judicial review. See Moya, 975 F.3d at 127 (holding that a plaintiff “may not sue

until they have satisfied” the exhaustion requirement). Even now, the record does

not indicate that USCIS has issued a final decision on Saleh’s Form N-336 appeal.

IV

Finally, the district court did not abuse its discretion by denying Saleh’s

motion for recusal. We review a denial of a motion to recuse for abuse of

discretion. See United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992).

“A federal judge must recuse herself in any proceeding where her

‘impartiality might reasonably be questioned’” or “where the judge ‘has a personal

bias or prejudice concerning a party.’” United States v. Morrison, 153 F.3d 34, 48 (2d

Cir. 1998) (quoting 28 U.S.C. § 455(a), (b)(1)). Additionally, a judge shall not

proceed in a matter in which he or she “has a personal bias or prejudice either

against [the plaintiff] or in favor of any adverse party.” 28 U.S.C § 144. The need

for recusal arises when “an objective, disinterested observer fully informed of the

underlying facts” would “entertain significant doubt that justice would be done

absent recusal.” United States v. Amico, 486 F.3d 764, 775 (2d Cir. 2007).

Saleh argues recusal was required here for three reasons. First, he suggests

that the district judge, who was a former federal prosecutor, was biased against

8 him because she previously prosecuted Muslim terrorists. But Saleh offers no

evidence that the district judge was biased against Muslims based on her prior

prosecutorial experience. The fact that the district judge was a former prosecutor

is not sufficient to create bias. See, e.g., Kendrick v. Carlson, 995 F.2d 1440, 1444 (8th

Cir. 1993) (“[A]n AUSA without any involvement in a case brought by other

attorneys in his office is not required to disqualify himself from presiding over

such a case under 28 U.S.C. § 455(b)(3).”); United States v. Fanta, No. 04-CR-1253,

2005 WL 3434709, at *2 (S.D.N.Y. Dec. 13, 2005).

Second, Saleh infers that the district judge was biased against him because

she denied his motion for a § 1447(b) hearing and delayed deciding whether to

transfer his case to the Eastern District of New York. But adverse rulings are not

evidence of bias. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial

rulings alone almost never constitute a valid basis for a bias or partiality recusal

motion.”).

Third, Saleh contends that the district judge tried to force him to attend an

administrative hearing by informing him that failure to attend could result in

further delays in his case. But that statement was not coercive; the district judge

merely pointed out that failure to attend the hearing could create more delays.

9 Because the standards for recusal were not met, the district court did not

abuse its discretion by denying Saleh’s motion for recusal.

* * *

We have considered Saleh’s remaining arguments, which we conclude are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court