Xiteng Liu v. United States Citizenship & Immigration Services

317 F. App'x 361

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 16, 2009
• Docket: 08-1579
• Status: Unpublished

Opinion

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Xiteng Liu appeals a district court order adopting the magistrate judge’s report and recommendation and granting the United States Citizenship and Immigration (“USCIS”) motion to dismiss his complaint seeking an order directing the USCIS to grant him authorization for practical training (“OPT”), see 8 C.F.R. § 214.2(f)(10)(ii) (2006), for a period of time and to award him damages for mental relief, living and medical expenses. The district court adopted the magistrate judge’s and recommendation finding it did not have jurisdiction. Finding no reversible error, we affirm.

This court reviews de novo the district court order granting a motion to dismiss for failing to state a claim and for lack of jurisdiction. Sucampo Pharms., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 550 (4th Cir.2006). We find Liu failed to state a claim insofar as he sought an order compelling the USCIS to extend his OPT. The decision from which Liu originally sought relief was essentially withdrawn by the USCIS when it granted Liu OPT. Thus, his claim was moot. The district court did not have the authority to compel the USCIS to modify the decision to grant OPT beyond what was authorized by See 5 U.S.C. § 706(1), (2) (2006).

The district court correctly found it did not have jurisdiction to consider Liu’s claim for monetary damages. Under the Federal Tort Claims Act (“FTCA”), the United States may be liable for tort claims in the same manner and to the same as a private individual under the See 28 U.S.C. § 2674 (2006). It is incumbent upon the claimant to his claim with the agency prior to bringing a suit in district court. 28 U.S.C. § 2675(a) (2006). Failure to exhaust remedies must result in of the lawsuit for want of Plyler v. United States, 900 F.2d 41, 42 (4th Cir.1990). A court may “not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise.” Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); see also Indus. Constructors Corp. v. U.S. Bureau of 15 F.3d 963, 968 (10th Cir.1994) (futility argument rejected for FTCA claim).

Accordingly, we affirm the district court order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials the court and argument would not aid the decisional process.

AFFIRMED.