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EL-KHADER v. PERRYMAN

April 1, 2003

HANI EL-KHADER PLAINTIFF,
v.
BRIAN PERRYMAN, DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, DEFENDANT



The opinion of the court was delivered by: Amy J. St. Eve, United States District Court Judge

MEMORANDUM OPINION AND ORDER

Plaintiff has filed a third amended complaint seeking judicial review of the decision to revoke a visa petition filed on his behalf. Defendant seeks to dismiss the complaint on the grounds that the Court does not have jurisdiction to consider the claim. Defendant further argues that Plaintiff must exhaust his administrative remedies before proceeding before this Court, and that he has failed to do so. For the reasons set forth below, Defendant's motion to dismiss is granted.

FACTUAL BACKGROUND

Plaintiff Hani El-Khader is an applicant for permanent resident status with the Immigration and Naturalization Service ("INS"). Defendant Brian Perryman is the District Director of the INS office in Chicago, Illinois where El-Khader's case is pending.

On May 9, 1997, Plaintiff married Nadia Muna. Based upon his marriage, he filed a petition for permanent residence status in the United States. On October 27, 1998, El-Khader and Muna divorced. In light of the divorce, the INS denied his petition on May 13, 1999.

On April 1, 1998, Ameritrust Mortgage Corporation filed an Immigrant Petition for Alien Worker on behalf of Plaintiff seeking residence for the Plaintiff in the United States pursuant to the Immigration and Nationality Act. Ameritrust was El-Khader's employer. On August 18, 1998, the INS approved Ameritrust's petition on behalf of El-Khader. Once he obtained this approval, he was eligible to apply for permanent resident status in the United States.

On September 4, 1998, Plaintiff filed an application for permanent residence status in the United States with the INS's Nebraska Service Center based on Ameritrust's approved petition. This application is known as an "adjustment of status application." On February 3, 2000, the Nebraska Service Center informed Plaintiff that it was transferring his application to the Chicago INS "in order to speed processing." The Chicago INS thereafter instituted an investigation to determine whether EI-Khader was qualified for the permanent resident visa.

As part of its investigation, the INS concluded that Plaintiff's marriage to Ms. Muna was a sham. On December 5, 2001, the INS informed Plaintiff that it intended to revoke the approved petition Ameritrust received on Plaintiff's behalf on the basis that El-Khader had previously entered into a marriage for the purpose of evading the immigration laws. The INS also denied his accompanying adjustment of status application on the same day. On May 14, 2002, Ameritrust and Plaintiff responded to the INS's notice of its intent to revoke his visa petition arguing that his marriage was legitimate.

On November 1, 2002, Defendant Perryman informed El-Khader that his visa petition would be revoked. Perryman informed EI-Khader that the INS was revoking the Petition for Skilled Worker or Professional filed on El-Khader's behalf pursuant to Section 205.2 of the Immigration and Naturalization Act because the INS's investigation revealed that "the marriage between Mr. El-Khader and Ms. Muna was a sham and was entered into for the purpose of procuring an immigration benefit." The INS concluded that El-Khader failed to provide any evidence establishing that his marriage was bona fide. Perryman noted "[e]ven though the marriage was an arranged marriage, Mr. El-Khader failed to establish any commitment to his marital union other than filing for adjustment of status." Accordingly, the INS revoked his petition.

Plaintiff did not file an administrative appeal of Perryman's decision. Plaintiff now seeks this Court's review of the INS' decision under the Administrative Procedure Act.

ANALYSIS

I. LEGAL STANDARD

On November 14, 2002, at the Court's direction, Plaintiff filed a memorandum with the Court arguing that he had exhausted his administrative remedies and was properly before the Court. The INS subsequently responded to the Plaintiff's memorandum in what amounts to a motion to dismiss the case for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Defendant argues that the Court does not have jurisdiction to hear this case, and even if it did, Plaintiff failed to exhaust his administrative remedies thus he is not properly before the Court. Plaintiff thereafter responded to the motion.

The standard for Rule 12(b)(1) and Rule 12(b)(6) motions is similar. The Court "must accept the complaint's well-pleaded factual allegations as true and draw reasonable inferences from those allegations in the plaintiffs favor." Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001). As the Seventh Circuit recently noted, "if the complaint is formally sufficient but the contention is that there is in fact no subject matter jurisdiction, the movant may use affidavits and other material to support the motion." United Phosphorus, Ltd. v. Angus Chemical Co., No. 01-1693, 2003 WL 910592 at *2 (7th Cir. Mar. 10, 2003). See also United Transp. Union v. Gateway ...


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