# Ramdial v. Bowes

> District Court, E.D. New York · March 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10306138

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10306138

## How later opinions describe it (automated extraction)

- noting that cases have found a “lack of subject matter jurisdiction in the transferor court to be fatal” to a Section 1406(a) transfer

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
Jason Ramdial, Denise Ramdial, Jeshua Ramdial,
Elianna Ramdial, and Elisha Ramdial,

Plaintiffs, MEMORANDUM & ORDER
20-CV-05599 (DG) (CLP)
-against-

Lee Bowes, Alejandro N. Mayorkas,
Merrick B. Garland, and Christopher A. Wray,*

Defendants.
---------------------------------------------------------X
DIANE GUJARATI, United States District Judge:
On November 17, 2020, Plaintiffs filed the Complaint in this action seeking relief
pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.; the mandamus
statute, 28 U.S.C. § 1361; and the Declaratory Judgment Act (“DJA”), 28 U.S.C. § 2201. See
Compl. ¶ 13, ECF No. 1. In substance, Plaintiffs challenge the denial by United States
Citizenship and Immigration Services (“USCIS”) of Plaintiffs’ Applications to Register
Permanent Residence or Adjust Status (“Form I-485”) and their Motions to Reopen/Reconsider
(“Form I-290B”), and ask this Court to deem USCIS’s decisions arbitrary and capricious, an
abuse of discretion, or otherwise not in accordance with law. See, e.g., id. ¶¶ 1, 28, 30, 33-34.

* The Clerk of Court is respectfully directed to amend the caption as set forth above. Pursuant to
Federal Rule of Civil Procedure 25(d), Merrick B. Garland, United States Attorney General, is
automatically substituted for former United States Attorney General William Barr, and
Alejandro N. Mayorkas, United States Secretary of Homeland Security, is automatically
substituted for former Acting United States Secretary of Homeland Security Chad Wolf and
Former Senior Official Performing the Duties of the United States Deputy Secretary of
Homeland Security Kenneth T. Cuccinelli.
On February 15, 2021, after a briefing schedule had been set but before Defendants’
motion to dismiss was due, the parties filed a joint motion and stipulation to transfer this action
to the United States District Court for the Middle District of Florida pursuant to 28 U.S.C.
§ 1406(a) (“Section 1406(a)”). Transfer Motion, ECF No. 11.

For the reasons set forth below, the Court finds that it lacks subject matter jurisdiction
over this action; that, as a result, the Transfer Motion must be denied; that it would not serve the
interest of justice to transfer this case pursuant to 28 U.S.C. § 1631 (“Section 1631”); and that
the Complaint must be dismissed.
BACKGROUND
On January 18, 2021, in anticipation of moving to dismiss the Complaint under Federal
Rules of Civil Procedure 12(b)(1), (3), and (6), Defendants filed a Motion for a Pre-Motion
Conference. ECF No. 10. In their Motion, Defendants explained that, on January 13, 2021 –
approximately two months after Plaintiffs filed their Complaint – the United States Department
of Homeland Security issued Notices to Appear in Removal Proceedings to Plaintiffs, id. at 1,

and Defendants argued, inter alia, that this Court lacks subject matter jurisdiction as a result, see
id. at 1-2; see also ECF No. 13 at 1-3. Plaintiffs did not oppose the Motion for a Pre-Motion
Conference, and, on February 2, 2021, the Court set a briefing schedule under which Defendants’
motion to dismiss would be due March 2, 2021.
On February 15, 2021, however, the parties filed the Transfer Motion. ECF No. 11. In
an Order dated February 17, 2021, the Court directed Plaintiffs to respond to Defendants’
assertion regarding subject matter jurisdiction or otherwise dismiss the case by February 24,
2021.1 On February 24, 2021, Plaintiffs filed their response. ECF No. 12. Although Plaintiffs
acknowledged that Notices to Appear had been issued, they argued that this Court nonetheless
retains subject matter jurisdiction. See id. at 1-2. Defendants filed a reply on March 3, 2021,
reiterating their position that this Court lacks subject matter jurisdiction and that the Complaint

should therefore be dismissed. ECF No. 13 at 1-3.
On March 5, 2021, the Court informed the parties that it would decide the issue of subject
matter jurisdiction based on the parties’ submissions. The Court afforded the parties the
opportunity to supplement their submissions by March 15, 2021. Neither party did so.
DISCUSSION
I. The Court Lacks Subject Matter Jurisdiction
A. Applicable Law
“[F]ederal courts are courts of limited jurisdiction and may not decide cases over which
they lack subject matter jurisdiction. Unlike failure of personal jurisdiction, failure of subject
matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua
sponte.” Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000).

“[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss
the complaint in its entirety.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (citation
omitted); see also Fed. R. Civ. P. 12(h)(3).
In certain circumstances, a party’s failure to exhaust administrative remedies deprives
federal courts of subject matter jurisdiction. “Under the doctrine of exhaustion of remedies, a

1 In that Order, the Court referenced Lindstrom v. Transervice Logistics, Inc., No. 17-CV-6988,
2018 WL 1121598, at *1 (E.D.N.Y. Feb. 27, 2018), where, in response to an order to show
cause why the case should not be dismissed for lack of subject matter jurisdiction, plaintiffs
instead requested a venue transfer and where the court thereafter denied the request and
dismissed the case.
party may not seek federal judicial review of an adverse administrative determination until she
has first sought all possible relief within the agency itself.” Blaszczyk v. U.S. Dep’t of Homeland
Sec., No. 09-CV-5212, 2010 WL 1038690, at *2 (E.D.N.Y. Mar. 21, 2010) (citing Beharry v.
Ashcroft, 329 F.3d 51, 56 (2d Cir. 2003)). When exhaustion is required but absent, a “court

lacks subject matter jurisdiction over th[e] action unless [the] [p]laintiff demonstrates that an
established exception to that requirement applies.” Islam v. Barr, 394 F. Supp. 3d 279, 285
(E.D.N.Y. 2019) (citing Howell v. I.N.S., 72 F.3d 288, 292-94 (2d Cir. 1995)). “Exhaustion of
administrative remedies may not be required when: (1) available remedies provide no genuine
opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial
relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised
a substantial constitutional question.” Howell, 72 F.3d at 291 (quoting Guitard v. U.S. Sec’y of
Navy, 967 F.2d 737, 741 (2d Cir. 1992)).
“The requirement of exhaustion ‘may arise from explicit statutory language or from an
administrative scheme providing for agency relief.’” Id. (quoting Kennedy v. Empire Blue Cross

& Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993)). In Howell, the United States Court of Appeals
for the Second Circuit determined that the latter was the case where a plaintiff was seeking
district court review of the United States Immigration and Naturalization Service’s denial of an
application for adjustment of status, noting: “th[e] exhaustion requirement arises as a result of
the administrative remedies available to [applicants] pursuant to the statutory and regulatory
schemes involving adjustment of status.” Id. at 293 (citation omitted). Specifically, applicants
“ha[ve] the opportunity, pursuant to the regulations, to renew [their] application for adjustment
of status before an immigration judge.” Id.; see also 8 C.F.R. § 245.2(a)(5)(ii) (stating that an
applicant for adjustment of status “retains the right to renew his or her application in [removal]
proceedings”).
In Howell, the court held that “the district court lacked jurisdiction” to review the denial
of the plaintiff’s “application for adjustment of status once deportation proceedings commenced,

because [the plaintiff] failed to exhaust her administrative remedies” and no exception applied.
72 F.3d at 293. Howell’s holding has since been reiterated in several decisions in this District.
See, e.g., Islam, 394 F. Supp. 3d at 285 (“[E]xhaustion is required [under the APA] once
deportation proceedings have commenced against a plaintiff whose status adjustment application
has been denied.” (citing Howell, 72 F.3d at 293)); Mahon v. Johnson, 321 F. Supp. 3d 320,
324-25 (E.D.N.Y. 2018); Blaszczyk, 2010 WL 1038690, at *2-3. Howell’s exhaustion
requirement has also been held to apply where, as here, removal proceedings commence after a
plaintiff files his or her complaint. See Islam, 394 F. Supp. 3d at 285 (collecting cases).
B. The Court Lacks Subject Matter Jurisdiction Over Plaintiffs’ Administrative
Procedure Act Claim
In light of the above principles, Plaintiffs have failed to show that subject matter
jurisdiction exists. Defendants contend that this case is governed by Howell given that Plaintiffs’
adjustment applications were denied, Plaintiffs are now in removal proceedings, and Plaintiffs
will have an opportunity to renew their adjustment applications before an immigration judge
(and then, if need be, appeal the immigration judge’s decision to the Board of Immigration
Appeals and the Second Circuit). See ECF No. 13 at 1-2. Defendants further argue that the fact

that removal proceedings began after Plaintiffs filed their Complaint does not preclude a finding
of lack of subject matter jurisdiction, see id. at 3, and that pertinent regulations divest this Court
and USCIS of jurisdiction in any event, id. at 2 (citing 8 C.F.R. §§ 245.2, 1245.2).
The Court agrees that it lacks subject matter jurisdiction and finds Plaintiffs’ arguments
to the contrary unavailing. Although Plaintiffs note that “the instant matter was filed earlier in
time than the Notices to Appear were issued,” ECF No. 12 at 1, they do not contest that removal
proceedings have been initiated or that they will be able to renew their applications in
immigration court, id. at 1-2.2 Nor do they address cases finding that exhaustion is required even

if removal proceedings commence after the filing of a complaint. Instead, Plaintiffs propose a
way that USCIS might review Plaintiffs’ applications while removal proceedings are ongoing.
See ECF No. 12 at 1. However, as Defendants point out, see ECF No. 13 at 2-3 (citing 8 C.F.R.
§§ 245.2, 1245.2), Plaintiffs do not cite any statute or regulation authorizing USCIS to follow
Plaintiffs’ proposed procedure and do not distinguish regulations indicating that USCIS cannot
do so, see ECF No. 12 at 1-2. Plaintiffs also do not explain how such a procedure, even if it
were possible, would free them from the exhaustion requirement. See ECF No. 10 at 1-2; ECF
No. 13 at 1-2.
At bottom, Plaintiffs ask this Court to review USCIS’s denial of Plaintiffs’ applications

for adjustment of status, the basis of which Plaintiffs allege was that “Mr. Ramdial’s R-1 non-
immigrant visa and authorization to work had ended . . . and that no extension for the R-1 status
had been granted nor was any approval given for a Form I-765 (Work Authorization),” Compl.

2 “It is . . . well established that when the question is subject matter jurisdiction, the court is
permitted to rely on information beyond the face of the complaint.” St. Paul Fire & Marine
Ins. Co. v. Universal Builders Supply, 409 F.3d 73, 80 (2d Cir. 2005) (citations omitted); see
also Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)
(“[W]here jurisdictional facts are placed in dispute, the court has the power and obligation to
decide issues of fact by reference to evidence outside the pleadings, such as affidavits.”
(quoting APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003))). Here, the only jurisdictional fact
– albeit a crucial one – drawn from outside Plaintiffs’ Complaint is the fact that Notices to
Appear have been issued, see ECF No. 10 at 1, which Plaintiffs acknowledge, see ECF No. 12
at 1.
¶ 18, and to review USCIS’s denial of Plaintiffs’ I-290B Motions, id. ¶ 26. Regardless of the
basis for USCIS’s decisions, however, in light of the commencement of removal proceedings
and Plaintiffs’ consequent ability to renew their adjustment applications in immigration court,
Plaintiffs have not exhausted their administrative remedies, and, as a result, this Court does not
have subject matter jurisdiction. See Mahon, 321 F. Supp. 3d at 324-25.3

The Court concludes that it lacks subject matter jurisdiction over Plaintiffs’ APA claim.
C. Neither the Mandamus Statute nor the Declaratory Judgment Act Confers
Jurisdiction Over this Action
The absence of exhaustion also precludes the Court from finding that subject matter
jurisdiction exists pursuant to the mandamus statute. The mandamus statute, 28 U.S.C. § 1361,
provides that “district courts shall have original jurisdiction of any action in the nature of
mandamus to compel an officer or employee of the United States or any agency thereof to
perform a duty owed to the plaintiff.” For mandamus relief to issue, a party must establish, inter
alia, that “no other adequate remedy [is] available.” Benzman v. Whitman, 523 F.3d 119, 133
(2d Cir. 2008) (citing Anderson v. Bowen, 881 F.2d 1, 5 (2d Cir. 1989)). As set forth above,
Plaintiffs have another adequate remedy. See Abbey v. Sullivan, 978 F.2d 37, 47 (2d Cir. 1992)
(“Our holding that the plaintiffs must exhaust their administrative remedies also disposes of
plaintiffs’ alternative argument for mandamus relief because one of the requisites for obtaining a
writ of mandamus is that the plaintiff have exhausted all other adequate remedies.”); see also
Women’s Equity Action League v. Cavazos, 906 F.2d 742, 752 (D.C. Cir. 1990) (“[A]

3 Plaintiffs do not contend that an exhaustion exception applies, and none does. Plaintiffs have a
genuine opportunity for adequate relief in removal proceedings, Plaintiffs have not alleged
irreparable injury in the absence of immediate judicial relief, administrative appeal would not
be futile insofar as an immigration judge can grant Plaintiffs’ applications, and Plaintiffs have
not raised a constitutional question. See Howell, 72 F.3d at 291.
determination that an APA action is barred by another remedy . . . demands the further
conclusion that mandamus is not available.”) (citation omitted); cf. Kyung Sook Oh v. Keisler,
No. 08-CV-3204, 2009 WL 3711540, at *4 & n.5 (E.D.N.Y. Oct. 8, 2009) (granting motion to
dismiss where “plaintiff . . . clearly failed to exhaust other available avenues of relief within

USCIS, foreclosing jurisdiction under the mandamus statute”). As such, the mandamus statute
does not provide a basis for subject matter jurisdiction here.
Finally, the Declaratory Judgment Act, 28 U.S.C. § 2201, “is not an appropriate
jurisdictional basis because DJA actions require an independent basis for jurisdiction.” Kyung
Sook Oh, 2009 WL 3711540, at *3 (citing 28 U.S.C. § 2201(a)); accord Correspondent Servs.
Corp. v. First Equities Corp. of Fla., 442 F.3d 767, 769 (2d Cir. 2006) (“[T]he Declaratory
Judgment Act does not by itself confer subject matter jurisdiction on the federal courts.”).
II. Transfer is Not Permitted Under Section 1406(a)
Given that this Court lacks subject matter jurisdiction over the action because of
Plaintiffs’ failure to exhaust their administrative remedies, the Court cannot transfer the action

pursuant to Section 1406(a). See, e.g., Lindstrom, 2018 WL 1121598, at *1 (“[A] court may not
issue a transfer order if it lacks subject-matter jurisdiction over the action.”) (citation omitted);
Okereke v. Allen, No. 14-CV-3368, 2015 WL 5508888, at *3 (S.D.N.Y. July 29, 2015) (“[I]n
order to transfer a case pursuant to § 1406(a), a court must also have subject matter jurisdiction
over an action.” (quoting Thomas v. Exxon Mobil Oil Corp., No. 06-CV-144, 2007 WL 489225,
at *6 n.10 (N.D. Ind. Feb. 8, 2007))), R. & R. adopted, No. 14-CV-3368, 2015 WL 5547388
(S.D.N.Y. Sept. 17, 2015); see also 14D, Charles Allen Wright & Arthur R. Miller, Federal
Practice and Procedure § 3827 (4th ed. 2020) (“A district judge may not order transfer under
Section 1406(a) unless the court has jurisdiction of the subject matter of the action . . . .”); Corke
v. Sameiet M. S. Song of Norway, 572 F.2d 77, 79 n.6 (2d Cir. 1978) (noting that cases have
found a “lack of subject matter jurisdiction in the transferor court to be fatal” to a Section
1406(a) transfer). This is so even though the parties have consented to transfer, because litigants
“cannot consent to the improper exercise of subject matter jurisdiction by a federal court.” Ruiz

v. Mukasey, 552 F.3d 269, 274 n.1 (2d Cir. 2009) (citation omitted); United Food & Com.
Workers Union, Loc. 919, AFL-CIO v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298,
303 (2d Cir. 1994) (“Litigants . . . cannot waive subject matter jurisdiction by express consent,
conduct, or estoppel . . . .” (citing Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee,
456 U.S. 694, 702 (1982))).
III. Transfer Would Not Serve the Interest of Justice and Therefore is not Warranted
Under 28 U.S.C. § 1631
Although 28 U.S.C. § 1631 does allow a court to transfer a case when subject matter
jurisdiction is lacking – and a court “may order a transfer of venue under § 1631 sua sponte,”
Moscato v. MDM Grp., Inc., No. 05-CV-10313, 2008 WL 2971674, at *5 (S.D.N.Y. July 31,
2008) – the Court declines to transfer this action pursuant to Section 1631. Under Section 1631,
a court is “required to transfer a case to another court when: (1) [it] lack[s] jurisdiction over the
case; (2) the transferee court would have possessed jurisdiction over the case at the time it was
filed; and (3) transfer would be in the interest of justice.” Ruiz, 552 F.3d at 273.

Here, the first requirement of Section 1631 is met. Even assuming the second is as well,
see ECF No. 10 at 1-2, the third is not. “When considering whether a transfer would serve the
interest of justice, [a court] must weigh ‘the equities of dismissing a claim when it could be
transferred.’ . . . ‘Factors militating for a transfer include a finding that a new action filed by the
litigant would be barred as untimely, and a finding that the original action was filed in good
faith.’” Ruiz, 552 F.3d at 276 (quoting Liriano v. United States, 95 F.3d 119, 122 (2d Cir.
1996)). Notwithstanding the apparent good faith filing of the Complaint, the equities of
dismissing this case outweigh the equities of transferring it, given that the transferee court would
also lack subject matter jurisdiction. See, e.g., Jiang Xue Qiang v. I.N.S., No. 05-CV-1878, 2006
WL 1026710, at *2 (E.D.N.Y. Apr. 12, 2006) (declining to transfer a case pursuant to Section

1631 where “such a transfer would be futile”). Accordingly, the Court declines to transfer the
case pursuant to Section 1631.
IV. The Complaint Must be Dismissed
Finding no basis to transfer this action, and lacking subject matter jurisdiction over it, the
Court must dismiss the Complaint. Arbaugh, 546 U.S. at 514; see also Fed. R. Civ. P. 12(h)(3).
CONCLUSION
For the reasons set forth above, the Transfer Motion, ECF No. 11, is DENIED and the
Complaint, ECF No. 1, is DISMISSED.
The Clerk of Court is directed to close this case.
SO ORDERED.
/s/ Diane Gujarati _
DIANE GUJARATI
United States District Judge

Dated: March 30, 2021
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306138. Public record. Not legal advice.