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Usman v. Nielsen

United States District Court, N.D. Indiana, Hammond Division

June 6, 2018

UMERA USMAN, Plaintiff,
KIRSTJEN M. NIELSEN, Secretary Department of Homeland Security, et al., Defendants.



         This matter is before the Court on Defendants' Motion to Dismiss the Amended Complaint and Brief in Support [DE 45], filed by Defendants on April 21, 2018. On May 4, 2018, Plaintiff Umera Usman filed a Motion to Strike and for a Directed Verdict, or in the Alternative, Response in Opposition to Defendants' Motion to Dismiss Amended Complaint. Defendants filed a reply on May 11, 2018.


         On June 1, 2011, Plaintiff Umera Usma filed with the U.S. Citizenship and Immigration Services (“USCIS”) Form I-130, Petition for Alien Relative, on behalf of her husband Usman Jahangir, a Pakistani foreign national. (ECF 23, ¶¶ 1, 2). Following her husband's consular interview at the U.S. Embassy in Islamabad, Pakistan, on April 6, 2012, the U.S. Department of State returned Ms. Usman's Form I-130 to the USCIS for further review. Id. at ¶ 3.

         Having submitted numerous inquiries with USCIS on the status of the petition with no response, on April 29, 2015, Ms. Usman filed her Complaint for Writ of Mandamus with this Court. (ECF 1); (ECF 23, ¶ 3). Subsequently, USCIS issued two Notices of Intent to Revoke, which Ms. Usman alleges did not contain the requisite evidentiary support to justify revoking her petition and contained unsubstantiated, irrelevant, and/or patently false allegations regarding Ms. Usman's marriage to Mr. Jahangir. (ECF 23, ¶ 4). Ms. Usman timely responded to both Notices, supplementing the record with documents evidencing her good faith marriage, including the birth certificate and photographs of the couple's son. Id. On October 28, 2015, USCIS revoked Ms. Usman's visa petition for her husband. Id.

         On January 8, 2016, Ms. Usman filed an Amended Complaint, alleging a claim under the Administrative Procedure Act (“APA”) that the visa petition revocation was an arbitrary and capricious agency action and that there was unreasonable delay in the process. (ECF 23). As relief, Ms. Usman seeks a declaratory judgment that USCIS's actions were arbitrary, capricious, and in violation of the law and seeks remand of the visa petition matter to USCIS and reinstatement of Ms. Usman's revoked petition, as well as attorney fees. Id.

         Meanwhile, Ms. Usman's petition was certified by USCIS to the Board of Immigration Appeals (“BIA”) for administrative review, and the administrative review and this judicial matter proceeded simultaneously. As a result, this Court granted numerous agreed extensions of Defendants' deadline to respond to the Amended Complaint in this case to allow the underlying administrative review process to run its course. Finally, on March 26, 2018, this Court denied Defendants' most recent request to extend their response deadline, to which Ms. Usman had objected, and ordered Defendants to respond to Ms. Usman's Amended Complaint on or before April 20, 2018. Unbeknownst to the Court at that time, on March 23, 2018, the BIA had completed its administrative review, affirming USCIS's decision revoking Ms. Usman's visa petition. (ECF 45, Ex. A). It appears that no further administrative review is pending with USCIS or BIA. (ECF 45). On April 21, 2018, Defendants filed the instant Motion to Dismiss.


         Ms. Usman asks the Court to strike Defendants' Motion to Dismiss for being filed one day late. Defendants did not file a motion for extension of time but rather included a footnote in the Motion to Dismiss explaining that Defendants' counsel had just returned from a multi-day work trip and had to care for his sick daugter. Ms. Usman argues that, contrary to Defendants' assertion in the footnote, Ms. Usman is prejudiced by the delay because it is one more day that she is separated from her husband.

         Federal Rule of Civil Procedure 6(b) requires that, “[w]hen an act . . . must be done within a specified time, the court may, for good cause, extend the time . . . on motion made after the time has expired if the party failed to act because of excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B). The determination of excusable neglect is “at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395-96 (1993). Courts consider “the danger of prejudice to [the nonmovant], the length of the delay and its potential impact on judicial proceedings, the reasons for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Raymond v. Ameritech Corp., 442 F.3d 600, 606 (7th Cir. 2006) (citing Pioneer, 507 U.S. at 395). In addition, “context matters in determining excusable neglect, including whether the movant exhibited dilatory behavior.” Kane v. Fin. of Am. Reverse, LLC, No. 117-CV-2266, 2018 WL 2001810, at *1 (S.D. Ind. Apr. 30, 2018) (citing Blue v. Hartford Life & Accident Ins. Co., 698 F.3d 587, 593-94 (7th Cir. 2012)).

         In this instance, Defendants have shown excusable neglect for responding to the Complaint one day late. The one-day delay is minimal, Defendants have not exhibited dilatory behavior throughout this litigation or in this instance, Defendants had good reason for the minimal delay with no evidence of bad faith, and the Court has a strong preference for resolving claims on their merits, rather than by default, when appropriate. Therefore, the Court denies the Motion to Strike. Defendants are cautioned that they should have filed a separate motion for extension of time.


         Pursuant to Federal Rule of Civil Procedure 12(b)(1), Defendants move to dismiss Ms. Usman's Amended Complaint for lack of subject matter jurisdiction. Ms. Usman challenges the revocation of a Form I-130 Petition for Alien Relative, and Defendants contend that visa petition revocation is a discretionary agency determination that is not subject to judicial review. Ms. Usman responds that the merits of the underlying revocation decision justify judicial review.

         Federal Rule of Civil Procedure 12(b)(1) requires a court to dismiss a cause of action when the court lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The “district court must accept as true all well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff.” Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995). “In all cases, the party asserting federal jurisdiction has the burden of proof to show that jurisdiction is proper.” Travelers ...

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