Rivera v. United States Citizenship and Immigration Service

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

EDWIN RIVERA,

Plaintiff,

-v.-

UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES, ROBERTO LEBRON, 19 Civ. 3101 (KPF)

Assistant Attorney General, THOMAS CIOPPA,

OPINION AND ORDER

District Director, United States Citizenship and

Immigration Services, NEW YORK STATE

OFFICE OF THE ATTORNEY GENERAL,

DEPARTMENT OF JUSTICE, OFFICE OF LEGAL

ACCESS PROGRAMS, and STEVEN LANG,

Program Director (AAG),

Defendants.

KATHERINE POLK FAILLA, District Judge:

Plaintiff Edwin Rivera instituted this action against United States

Citizenship and Immigration Services (“USCIS”), Thomas Cioppa, the former

New York District Director of USCIS,1 and Steven Lang, Program Director for

the Department of Justice’s Office of Legal Access Programs (“OLAP”)

(collectively, the “Federal Defendants”), as well as the New York State Office of

the Attorney General (the “OAG”) and Assistant Attorney General (“AAG”)

Roberto Lebron (collectively, the “State Defendants”). Plaintiff alleges a litany of

claims arising out of: (i) New York State court proceedings in which he was

1 Plaintiff erroneously identified Mr. Cioppa as the Director of USCIS, when he is in fact

the retired New York District Director of that agency. The Court will consider Plaintiff’s

claims to be brought against both the New York District Director and the Director of

USCIS in their official capacities, but such consideration does not alter the Court’s

analysis. Had this case progressed beyond the instant motions, the Court would have

amended the caption accordingly.

barred from providing immigration services; (ii) the denial of his application to

become accredited to represent clients in immigration proceedings; and (iii) the

denial of certain immigrant petitions he sponsored. For the many independent

reasons set forth in the remainder of this Opinion, Plaintiff’s claims are

dismissed in their entirety.

BACKGROUND2

A. Factual Background

1. Plaintiff’s Directorship of Homeward Bound Program for

Children, Inc.

For purposes of these motions, the Court accepts as true the well-

pleaded allegations of the Second Amended Complaint. Plaintiff Edwin Rivera

is the director of a non-profit religious organization known as the Homeward

Bound Program for Children, Inc. (“HBP”). (SAC 1, 5, 16, 18, 38). According to

Plaintiff, HBP is organized under Section 501(c)(3) of the Internal Revenue Code

and operates from an office located in the Bronx, New York. (Id. at 7, 15-16,

38). Out of its Bronx office, HBP holds religious services, raises funds by

2 The facts contained in this Opinion are drawn primarily from Plaintiff’s second amended

complaint (the “Second Amended Complaint” or “SAC” (Dkt. #39)), which is the

operative pleading in this case, and the exhibits attached thereto; Plaintiff’s Affidavit in

Support of the Second Amended Complaint (“Pl. Aff.” (Dkt. #39 at 54-62)); the

Declaration of David B. Diamond in Support of the State Defendants’ Motion to Dismiss

(“Diamond Decl.” (Dkt. #49)), and Plaintiff’s Declaration in Support of His Opposition to

Defendants’ Motions to Dismiss (“Pl. Opp. Decl.” (Dkt. #55)).

For ease of reference, the Court refers to the Federal Defendants’ opening brief as “Fed.

Def. Br.” (Dkt. #45); the State Defendants’ opening brief as “State Def. Br. (Dkt. #48);

Plaintiff’s opposition brief as “Pl. Opp.” (Dkt. #54); the Federal Defendants’ reply brief as

“Fed. Def. Reply” (Dkt. #57); and the State Defendants’ Reply Brief as “State Def. Reply”

(Dkt. #56). The Court refers to the exhibits attached to the Diamond Decl. using the

convention “Diamond Decl., Ex. [ ]” and refers to the exhibits attached to the SAC using

the convention “SAC, Ex. [ ]”.

selling accounting services, and provides services for community members that

include “writing letters and filling out forms for immigration offices and for

school.” (Id. at 15-16). In his capacity as HBP Director, Plaintiff has assisted

in the preparation of several immigration-related forms, several of which have

been denied by USCIS and OLAP. (See id. at 4, 7, 20, 24, 25). Those denials

are at the heart of this lawsuit.

2. Plaintiff’s Submission of Applications and Petitions to USCIS

On October 13, 2017,3 Plaintiff submitted a Form EOIR-31 application to

USCIS seeking to have HBP recognized as an organization authorized to

represent individuals in U.S. immigration courts through an accredited

representative, and a Form EOIR-31A application to have Plaintiff recognized

as such an accredited representative. (SAC 7, 26-27; id. at Ex. 9; Pl. Aff. ¶ 16).

On December 15, 2017, OLAP denied both applications.4 (SAC 24-27; id. at

Ex. 9; Pl. Aff. ¶ 16).

Plaintiff similarly claims that on March 23, 2018, he submitted Form I-

360 petitions to USCIS on behalf of three “members” of HBP, seeking to have

them classified as Special Immigrant Religious Workers under the Immigration

and Nationality Act (the “INA”). (SAC 6-7, 19-20; id. at Ex. 8, 9, 18).5 He

3 The dates in the Facts section are approximate.

4 The Court understands from the record that Plaintiff submitted the Form EOIR-31 and

EOIR-31A applications to USCIS; USCIS recommended that OLAP deny the applications;

and OLAP then denied the applications. (See SAC, Ex. 9).

5 In Plaintiff’s original complaint (Dkt. #2) and first amended complaint (Dkt. #24), he

referred to 34 Form I-360 petitions that he sponsored, which petitions were either denied

or then pending before USCIS. (See also Dkt. #34 at 12, 26, 27). In his Second

Amended Complaint, Plaintiff speaks of only three petitioners whose applications he

claims that USCIS denied the HBP members’ Form I-360 petitions and then

denied an appeal by one such member from the initial denial of her petition.

(SAC 19; id. at Ex. 8, 18).

3. The State Defendants’ Alleged Involvement in the Denial of

Plaintiff’s Applications and Petitions to USCIS

According to Plaintiff, the State Defendants unlawfully caused the denial

of the EOIR-31 and EOIR-31A applications that he submitted to USCIS on

behalf of HBP and himself, as well as the Form I-360 petitions he submitted on

behalf of the three HBP members. (SAC 19-20; Pl. Aff. ¶ 16). In particular,

Plaintiff claims that USCIS’s recommendation that the applications be denied

and OLAP’s and USCIS’s decisions to deny the applications and petitions

improperly relied on factual findings and legal conclusions that had been set

forth in a May 6, 2005 decision and order (Diamond Decl., Ex. F (the “May 6,

2005 Order”)), and an October 19, 2005 judgment and order (id. at Ex. G (the

“October 19, 2005 Judgment”)), both of which had been issued in connection

with a 2004 civil proceeding that AAG Lebron successfully prosecuted against

Plaintiff in New York State Supreme Court, Bronx County. See People v.

Rivera, Index No. 1576/2004 (Sup. Ct. Bronx Cty.) (“People v. Rivera” or the

“State Court Proceeding”). (SAC 13, 44 (referencing May 6, 2005 Order); Pl. Aff.

¶¶ 16-17 (referencing May 6, 2005 Order and October 19, 2005 Judgment)).

sponsored. (See SAC 19). Specifically, Plaintiff refers to I-360 petitioners Juan Collado,

Gladis Collado, and Ramona Urena. (Id.). Since Plaintiff appears to have abandoned the

claims regarding the other 31 I-360 petitions, the Court considers Plaintiff’s claims solely

with respect to the three I-360 petitions discussed in the Second Amended Complaint,

although its analysis would apply equally to all 34 petitions.

Because of its centrality to Plaintiff’s claims, the State Court Proceeding is

discussed in some detail herein.

4. The OAG’s Prosecution of Plaintiff

Having commenced an investigation into Plaintiff in 2004, the OAG

obtained the May 6, 2005 Order and the November 18, 2005 Judgment

pursuant to authority provided in New York Executive Law § 63(12). In issuing

the May 6, 2005 Order, a judge of the Bronx Supreme Court found that:

(i) Plaintiff had engaged in deceptive acts and practices, including false

advertising, while providing immigration services to the public, in violation of

New York General Business Law §§ 349(a) and 350; and (ii) Plaintiff had

engaged in the unlicensed practice of law by falsely holding himself out as an

attorney in violation of New York Judiciary Law § 478. (May 6, 2005 Order 9-

11). Additionally, the court found that in offering immigration services to the

public, Plaintiff had made false representations concerning the status of

unenacted federal legislation known as the Development, Relief & Education

for Alien Minors Act (the “DREAM Act”),6 and had charged numerous

immigrants seeking legal residency $1,500 dollars each to submit purported

DREAM Act applications on their behalves, all of which were denied by federal

6 As the State Defendants explain (see State Def. Br. 4 n.6), the DREAM Act legislation

was first introduced by Senator Orrin Hatch in 2001. See Development, Relief, and

Education for Alien Minors Act, S. 1291, 107th Cong. (2001). In its initial form, the

DREAM Act would have granted lawful permanent residency to non-resident immigrant

children who were at least 12 years old before the date of its enactment and who filed a

DREAM Act application for lawful permanent residency before turning 21, provided they

met certain residency, educational, and character conditions. Id. § 3(a)(1). The DREAM

Act was not enacted in its initial form and has since been introduced in at least 20

different forms, none of which has been enacted.

immigration authorities. (May 6, 2005 Order 4-11). Further, Plaintiff had

falsely held himself out as an attorney in advertising, conversations, and

written immigration applications he submitted on behalf of clients to federal

immigration authorities. (Id. at 9-11). The May 6, 2005 Order directed the

OAG, as petitioner, to settle an order on notice for relief. (Id.).

Pursuant to that directive, the OAG sought and obtained the

November 18, 2005 Judgment, which specified several forms of injunctive relief

against Plaintiff. (November 18, 2005 Judgment 1-2). Among other

proscriptions, the November 18, 2015 Judgment provided that:

[Plaintiff] is enjoined and prohibited from engaging in

any of the fraudulent, deceptive or illegal acts and

practices alleged in the Amended Verified Petition in

violation of GBL §§ 349, 350 and 130, and Judiciary

Law § 478, including, but not limited to:

(a) Holding himself out to the public as being

entitled to practice law without being duly licensed and

admitted to practice law in the State of New York

including, but not limited to, maintaining a law office in

New York; advertising that he is an attorney;

representing orally and in writing that he is an attorney;

appearing as an attorney-at-law in a court of record;

and rendering legal advice;

(b) Falsely advertising or otherwise

misrepresenting any aspect of the process of adjusting

immigration status, or any other service available in

immigration matters;

(c) Accepting money for services which he is not

legally entitled to perform, or accepting money for

services which he is legally entitled to perform and then

failing to perform such services;

(d) Failing to provide refunds to consumers;

(e) Directly or indirectly destroying or disposing of

any records pertaining to his business; [and]

(f) Conducting a business under a name other

than his real name without filing a certificate providing

the name or designation under which he does business

with the clerk of each county [in which] the business is

conducted[.]

(Id.). Other relief provisions in the November 18, 2015 Judgment directed

Plaintiff to provide the OAG with a complete accounting of his consumer

transactions and to pay $24,331 in restitution to the numerous consumers he

had defrauded. (Id.).

Plaintiff’s fraudulent conduct persisted unabated. In consequence, from

late July 2008 through August 22, 2016, the OAG obtained four additional

orders holding Plaintiff in criminal or civil contempt of the November 18, 2005

Judgment. (Diamond Decl., Ex. I (the “July 29, 2008 Order”); id. at Ex. J (the

“July 20, 2009 Order”); id. at Ex. K (the “October 27, 2011 Order”); id. at Ex. L

(the “August 22, 2016 Order”)). These orders were obtained by the OAG on

evidentiary showings that (i) Plaintiff was continuing to hold himself out falsely

both as an individual authorized to provide immigration services and as an

attorney, and (ii) Plaintiff had failed to pay the restitution previously ordered.

(July 29, 2008 Order; July 20, 2009 Order; October 27, 2011 Order;

August 22, 2016 Order).

In the July 29, 2008 Order, a judge of the Bronx Supreme Court held

Plaintiff in criminal contempt after finding that he had continued to offer

immigration services to the public while not authorized to do so by USCIS and

had falsely held himself out as an attorney. (See July 29, 2008 Order 4-9).

The court ordered sweeping injunctive relief against Plaintiff, including a

directive “permanently enjoining him from offering immigration services of any

kind in exchange for payment to any person in New York.” (Id. at 1).

Thereafter, in ruling on the OAG’s later contempt motions, the court held that

Plaintiff had violated both the November 18, 2005 Judgment and the July 29,

2008 Order by, among other things, continuing to offer immigration services to

the public and holding himself out as an attorney. (See July 20, 2009 Order;

October 27, 2011 Order; August 22, 2016 Order).

Pursuant to these contempt orders, the OAG obtained Warrants of

Commitment for Plaintiff’s arrest and incarceration. (Diamond Decl., Ex. M

(warrant of commitment dated July 20, 2009); id. at Ex. N (warrant of

commitment dated October 27, 2010); id. at Ex. O (warrant of commitment

dated November 7, 2011); id. at Ex. P (warrant of commitment dated

September 23, 2016)). During that time period, Plaintiff twice moved to

dismiss the State Court Proceeding; both motions were denied as moot based

on the May 6, 2005 Order that had determined the merits of the proceeding

and Plaintiff’s failure to appeal that order. See People v. Rivera, Index No.

1576/2004, 2013 WL 6822885, at *1 (Sup. Ct. Bronx Cty. Mar. 1, 2013);

People v. Rivera, Index No. 1576/2004, 2013 WL 6832083, at *1 (Sup. Ct.

Bronx Cty. Aug. 27, 2013), aff’d, 9 N.Y.S.3d 871 (1st Dep’t 2015).

5. Plaintiff’s New York Court of Claims Action

On May 4, 2017, Plaintiff filed an action in the New York Court of Claims

alleging that the Attorney General had subjected him to a false arrest on

February 16, 2017, as well as other false arrests and unlawful actions from

May 2005 through November 2011. (See Diamond Decl., Ex. Q (Rivera v. State

of New York, Claim No. 129436 (N.Y. Ct. Cl. Mar. 13, 2017)); id. at Ex. R

(Rivera v. State of New York, Claim No. 129674 (N.Y. Ct. Cl. May 4, 2017))).7

In the Court of Claims action, Plaintiff floated several allegations

concerning AAG Lebron’s conduct that are renewed here, including claims that

Lebron’s conduct was retaliatory for an audit Plaintiff had conducted of the

Puerto Rican Bar Association. (Compare SAC 7-9, 39-40, 44-45 (allegations of

retaliatory prosecution and false arrest), with Diamond Decl., Ex. Q (same)).

On June 15, 2018, the Court of Claims dismissed the action based on AAG

Lebron’s absolute prosecutorial immunity and Plaintiff’s failure to state a cause

of action for false arrest. (Diamond Decl., Ex. Q (Rivera v. State of New York,

Claim No. 129674 (N.Y. Ct. Cl. June 15, 2018) (the “June 15, 2018 Order”)).

6. The Denials by USCIS and OLAP

a. OLAP’s Denial of the Form EOIR-31 and EOIR-31A

Applications

Plaintiff is correct that the State Court Proceeding impacted certain of the

USCIS denials he challenges in this case. In a written decision issued on

December 15, 2017, OLAP denied the Form EOIR-31 and EOIR-31A

applications that Plaintiff had submitted to obtain authorization for HBP to

7 Plaintiff filed Claim No. 129436 on March 17, 2017 (Diamond Decl., Ex. Q), which was

dismissed based on improper service (id. at Ex. S (Rivera v. State of New York, Claim

No. 129436 (N.Y. Ct. Cl. Sept. 6, 2017))). On May 4, 2017, he filed Claim No. 129674

(Diamond Decl., Ex. R), which asserted essentially the same fact allegations (id. at Ex. S

at 2 & n.1).

represent individuals in U.S. immigration courts, and to have himself

accredited as a representative. (See SAC 24-27; id. at Ex. 9). OLAP denied

these applications upon recommendation from the Director of USCIS’s New

York District Office, citing Plaintiff’s failure to demonstrate, in accordance with

applicable regulations, that he possessed the “‘character and fitness to

represent clients before the Immigration Courts.” (SAC, Ex. 9 at 1). OLAP

noted that Plaintiff had been identified by the Executive Office of Immigration

Review, Fraud and Abuse Prevention Program “as a person of concern due to

his history of prosecution for fraud and theft.” (Id.). It further noted that in

October 2016, Plaintiff had been arrested and ordered to serve jail time for

violating the November 18, 2005 Judgment and the July 29, 2008 Order, both

of which enjoined him from providing immigration services to the public and

directed him to pay restitution. (Id.).

b. USCIS’s Denial of the Three HBP Members’ Form I-360

Petitions

On March 7, 2019, USCIS denied two of the three Form I-360 petitions

Plaintiff submitted on behalf of HBP members to have them classified as

Special Immigrant Religious Workers. (See SAC, Ex. 8 & 9). USCIS cited the

following three grounds for the denials: (i) the petitioners were not employed in

“qualifying positions” based on applicable INA regulations; (ii) the petitioners

did not have sufficient “qualifying work experience” under applicable INA

regulations; and (iii) a “compliance review” that USCIS had conducted of HBP’s

operations pursuant to INA regulations, revealed that while the November 18,

2005 Judgment had ordered Plaintiff “to stop engaging in the unlawful practice

of immigration law and pay $24,331.00 [in restitution] to the [OAG],” records

maintained by USCIS indicated that Plaintiff or HBP had been listed on

applications submitted to USCIS since that Judgment was issued. (Id.).8

7. Plaintiff’s Factual Allegations Concerning the State

Defendants’ Unlawful Conduct

To review, Plaintiff contends that the May 6, 2005 Order and the

November 18, 2005 Judgment in the State Court Proceeding were both based

on false allegations by AAG Lebron and are therefore void. (SAC 7-9, 50-51).

More specifically, he insists that AAG Lebron’s prosecution was founded on

fabricated allegations and pursued in retaliation for an audit Plaintiff

conducted of the Puerto Rican Bar Association, during which he uncovered

evidence of misappropriated funds for which AAG Lebron was allegedly

responsible. (Id. at 7-9, 13-14, 39-40, 44-45).

Plaintiff further claims that he was subjected to unspecified false arrests

based on the warrants of commitment that the OAG obtained in the State

Court Proceeding, which arrests he contends were based on the false

information AAG Lebron allegedly presented to obtain the May 6, 2005 Order.

(SAC 13-14, 44-46). He also claims that in violation of his due process rights,

neither he nor his attorney ever received notice of procedural events in the

State Court Proceeding. (Id. at 8, 44).

8 The third HBP member’s Form I-360 petition was apparently denied by USCIS on

September 11, 2019, on the first two of the foregoing grounds, but not the third. (SAC,

Ex. 18).

Separately, Plaintiff alleges that statements made by AAG Lebron

publicly defamed Plaintiff in his “business and trade as an accounting

contractor.” (SAC 49-50). Specifically, he alleges that on July 29, 2019, in the

presence of an attorney named Anibal Romero, AAG Lebron stated: “[Plaintiff]

is under investigation and he will be arrested with the cooperation of each

Religious Worker.” (Id. at 49 (italics omitted)). Plaintiff similarly claims that on

or around the same date, AAG Lebron stated to an unspecified number of

apparently disgruntled religious workers employed by HBP: “You must come to

our office to help keep Rivera in prison for a long time.” (Id. (italics omitted)).

And Plaintiff alleges that on October 4, 2016, AAG Lebron made the false and

defamatory statement that “[t]hough [his] business was billed as an accounting

office, Rivera advertised himself as an attorney with more than 30 years of

experience, targeting undocumented immigrants looking to legalize their

status[.]” (Id. at 50 (italics omitted)).9

8. Plaintiff’s Factual Allegations Concerning the Federal

Defendants’ Unlawful Conduct

With respect to the Federal Defendants, Plaintiff principally alleges that

the I-360 petitions he sponsored and the EOIR-31 and EOIR-31A applications

he submitted were improperly denied by USCIS and OLAP because of the

9 In alleging that AAG Lebron made this statement, Plaintiff appears to quote an

October 4, 2016 news article that reported on both his arrest on October 3, 2016, and

the August 22, 2016 Order holding him in civil and criminal contempt. (Compare SAC

50, with Nathan Tempey, Serial Scammer Jailed for Posing as an Immigration Lawyer,

Gothamist (Oct. 4, 2016), https://gothamist.com/news/serial-scammer-jailed-for-

posing-as-an-immigration-lawyer). Of potential note, the article actually attributed the

cited statement to the OAG.

OAG’s arrests of Plaintiff. (SAC 7, 20, 25-27, 38, 43, 46). Consequently,

Plaintiff demands reversal of all the denials of petitions and applications that

he filed with USCIS and OLAP. (See id. 24, 47). Plaintiff also claims that the

Federal Defendants are liable for intentional infliction of emotional distress,

negligence and breach of duty, and violations of his constitutional rights that

can be vindicated under 42 U.S.C. § 1983 and 5 U.S.C. § 702.

B. Procedural History

Plaintiff filed the original complaint in this action on April 8, 2019. (Dkt.

#2). On July 17, 2019, the State Defendants filed a pre-motion letter

concerning their anticipated motion to dismiss the original complaint. (Dkt.

#12). On August 5, 2019, after noting that Plaintiff failed to serve the

complaint on the Federal Government as required under Rule 4(i)(1), the

Federal Defendants filed a pre-motion letter to dismiss the complaint. (Dkt.

#22).

On August 8, 2019, Plaintiff filed an amended complaint, which was

substantively identical to his prior complaint but re-characterized his original

Title VII claims as Fifth Amendment due process claims. (See Dkt. #24).

Following another round of pre-motion letters to dismiss by the State and

Federal Defendants (see Dkt. #25, 28), the Court held a pre-motion conference

on August 15, 2019 (see Dkt. #34 (transcript)). There, Plaintiff explained his

allegations and grievances to the Court. (See generally id.). At the end of the

conference, Plaintiff asked for leave to amend his complaint. (See id. at 42).

The Court granted Plaintiff leave to file a second amended complaint and set a

briefing schedule for the Federal and State Defendants’ motions to dismiss.

(Id. at 42-45; see also Dkt. #29).

Plaintiff filed his Second Amended Complaint on October 18, 2019. (Dkt.

#39). On January 6, 2020, the State Defendants and Federal Defendants filed

their respective motions to dismiss. (See Dkt. #44-49). Plaintiff filed a brief

and declaration opposing the motions to dismiss on February 24, 2020. (Dkt.

#54-55). The State and Federal Defendants filed their reply briefs on

March 13, 2020, and March 16, 2020, respectively. (Dkt. #56-57).

Accordingly, the motions to dismiss are ripe for the Court’s review.

DISCUSSION

A. Applicable Law

1. Motions to Dismiss Under Rule 12(b)(1)

“[A] district court may properly dismiss a case for lack of subject matter

jurisdiction under Rule 12(b)(1) if it lacks the statutory or constitutional power

to adjudicate it.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635,

638 (2d Cir. 2005) (internal quotation marks omitted); accord Sokolowski v.

Metro. Transp. Auth., 723 F.3d 187, 190 (2d Cir. 2013). A “plaintiff asserting

subject matter jurisdiction has the burden of proving by a preponderance of

the evidence that it exists.” Makarova v. United States, 201 F.3d 110, 113 (2d

Cir. 2000).

“Subject-matter jurisdiction is a threshold issue that must be addressed

prior to the merits.” Allen v. N.Y.C. Hous. Auth., No. 15 Civ. 173 (ALC), 2016

WL 722186, at *4 (S.D.N.Y. Feb. 19, 2016). Federal courts have original

jurisdiction over civil actions in which the parties have diversity of citizenship

and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). This is

known as diversity jurisdiction, as contrasted with jurisdiction based on the

existence of a federal question. See 28 U.S.C. § 1331. Diversity jurisdiction

requires complete diversity between the parties, meaning that no plaintiff has

the same citizenship as any defendant. Exxon Mobil Corp. v. Allapattah Servs.,

Inc., 545 U.S. 546, 553 (2005).

On a Rule 12(b)(1) motion, the challenge to subject matter jurisdiction

may be facial or fact-based. Carter v. Healthport Tech., LLC, 822 F.3d 47, 55

(2d Cir. 2016). When considering a facial challenge, a court must determine

whether the pleading “allege[s] facts that affirmatively and plausibly suggest

that” subject matter jurisdiction exists. Id. (quoting Amidax Trading Grp. v.

S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011)). For purposes of a Rule

12(b)(1) facial challenge, a court accepts all factual allegations as true and

draws all reasonable inferences in favor of the plaintiff asserting jurisdiction.

Id. (citing W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d

100, 106 (2d Cir. 2008); Lunney v. United States, 319 F.3d 550, 554 (2d Cir.

2003)). In contrast, to support a fact-based Rule 12(b)(1) challenge, a

defendant may proffer evidence beyond the pleadings. Carter, 822 F.3d at 56-

57 (citing Amidax, 671 F.3d at 145). To oppose such a motion, a plaintiff must

present controverting evidence “if the affidavits submitted on a 12(b)(1)

motion ... reveal the existence of factual problems” with respect to jurisdiction.

Id. (quoting Exchange Nat’l Bank of Chi. v. Touche Ross & Co., 544 F.2d 1126,

1131 (2d Cir. 1976)).

2. Motions to Dismiss Under Rule 12(b)(6)

When a court considers a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), it must “draw all reasonable inferences in Plaintiff[’s] favor,

assume all well-pleaded factual allegations to be true, and determine whether

they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co.,

648 F.3d 98, 104 (2d Cir. 2011) (quoting Selevan v. N.Y. Thruway Auth., 584

F.3d 82, 88 (2d Cir. 2009)) (internal quotation marks omitted). A plaintiff will

survive a motion to dismiss if she alleges “enough facts to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007); see also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007)

(“While Twombly does not require heightened fact pleading of specifics, it does

require enough facts to nudge [a plaintiff’s] claims across the line from

conceivable to plausible.” (internal quotation marks and citation omitted)).

The Court is not, however, bound to accept “conclusory allegations or

legal conclusions masquerading as factual conclusions.” Rolon v. Henneman,

517 F.3d 140, 149 (2d Cir. 2008) (citation omitted); see also Harris v. Mills, 572

F.3d 66, 72 (2d Cir. 2009) (“[A]lthough a court must accept as true all of the

allegations contained in a complaint, that tenet is inapplicable to legal

conclusions, and threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” (internal quotation

marks, brackets, and citation omitted)).

3. The Court’s Review of Pro Se Submissions

In light of Plaintiff’s pro se status, the Court “afford[s] [him] a special

solicitude[,]” and, in this regard, will liberally construe his pleadings and

motion papers. Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). Under

this directive, the Court is to read Plaintiff’s “‘submissions to raise the

strongest arguments they suggest.’” McLeod v. Jewish Guild for the Blind, 864

F.3d 154, 156 (2d Cir. 2017) (quoting Bertin v. United States, 478 F.3d 489,

491 (2d Cir. 2007)).

B. Analysis

1. Overview of Plaintiff’s Claims

Plaintiff appears to advance six claims, each labeled as a “Cause of

Action.” (SAC 20-25 (intentional infliction of emotional distress); id. at 25-38

(negligence and breach of duty); id. at 38-43 (malicious prosecution); id. at 43-

46 (malicious prosecution and abuse of process); id. at 46-48 (equal protection

and due process); id. at 48-51 (defamation)). The first, third, fourth, and sixth

causes of action appear to be asserted against the State Defendants. (See id. at

20-25, 38-46, 48-51). The first, second, fourth, and fifth causes of action

appear to be asserted against the Federal Defendants. (See id. at 20-38, 43-

48).10

10 Plaintiff’s opposition brief largely fails to respond to the arguments raised by

Defendants in their motions. Rather, Plaintiff focuses almost entirely on complaints

concerning the purported management of the OAG and the condition of certain

unidentified facilities. (See, e.g., Pl. Opp. 22 (“The stark mismatch that NYSAG’s

management resources and the size of its staff has had predictably disastrous

consequences: a substantial number of unsupervised cases, inadequate management

care, failure to provide the basic hoof and proper supervision that AAG’s require, AAGs

Plaintiff’s first cause of action is a claim for “Intentional Infliction of

Emotional Distress” against both the State and Federal Defendants. (SAC 20-

25). In support of this claim, Plaintiff contends that AAG Lebron has

threatened Plaintiff “with false allegations and false arrests since 2004.” (Id. at

21). He explains that in February 2015, the Immigration Assistance Provider

program went into effect as law in New York, which required immigration

preparers to post a $50,000 bond and undertake other actions. (Id. at 22). In

light of this law, Plaintiff’s application to become an immigration preparer was

denied, due to the allegations made against him by AAG Lebron. (Id. at 23).

Plaintiff contends that, had the Federal Defendants actually read the

proceedings before the Court of Claims, the Form I-360 petitions and Form

EOIR-31 application would not have been denied. (Id. at 24). Plaintiff seeks

equitable relief in the form of a Court order reversing the denials by OLAP and

USCIS of the applications and petitions he submitted to USCIS. (Id.).

Plaintiff’s second cause of action, alleged against the Federal Defendants,

is for negligence and breach of duty. (SAC 25). Essentially, Plaintiff claims

going without proper training and legal responsibility.”); id. at 26 (“NYAG’s substandard

spending places an enormous strain on its facilities, which must find ways to

supplement NYAG’s services in order to provide the proper care to the cases.”); id. at 33

(“NYAG is chronically insolvent and remains significant in arrears to its mission, which

depends on the need of serving the public.”)). Even if the Court were to consider these

allegations, which appear nowhere in his SAC, Plaintiff cites no authority supporting

his ability to bring a private right of action for the relief he seeks, including changes to

the management of the OAG and the supervision of Assistant Attorneys General. (See,

e.g., id. at 39 (“The plaintiffs seek to remove several AAGs ‘for cause’[.]”)). “[F]ederal

courts have no general power to compel action by state officials.” Davis v. Lansing, 851

F.2d 72, 74 (2d Cir. 1988). Further, any claims based on purported mismanagement

and neglect, and any attempts to relitigate decisions rendered in the State Court

Proceeding, would be barred for the many reasons set forth in the text.

that USCIS failed to conduct a sufficiently thorough factual investigation before

submitting a report to OLAP recommending the denial of the EOIR-31 and

EOIR-31A applications. (Id. at 25-27). He contends that USCIS should have

suspended or “de-energize[d]” certain unidentified provisions of the New York

City Department of Consumer Affairs law and/or regulations applicable to

immigration form preparers. (Id. at 31; see also id. at 23).

Plaintiff’s third and fourth causes of action appear to be brought under

42 U.S.C. § 1983 against the State and Federal Defendants. His third cause of

action appears to advance claims for money damages against the State

Defendants for AAG Lebron’s supposed malicious prosecution of the State

Court Proceeding based on false allegations, and violations of Plaintiff’s due

process rights based AAG Lebron’s supposed failure to provide Plaintiff with

adequate notice of the proceeding. (SAC 38-43). Relying on similar factual

allegations, Plaintiff’s fourth cause of action (id. at 43-46) appears to assert

claims for malicious prosecution and abuse of process under § 1983 against

both the State and Federal Defendants. On this claim, Plaintiff seeks equitable

relief in the form of an order invalidating the May 6, 2005 Order, the

November 18, 2005 Judgment, and the other orders in the State Court

Proceeding, and possibly money damages. (Id. at 43-46; see id. at 52).

Plaintiff’s fifth cause of action appears to assert claims under § 1983 and

5 U.S.C. § 702 alleging that the Federal Defendants violated his equal

protection11 and due process rights in denying the I-360 petitions. (SAC 46-

47). Similar to his second cause of action, Plaintiff seeks equitable relief on the

claim in the form of a Court order reversing the denials by OLAP and USCIS of

the applications and petitions he submitted to USCIS. (Id. at 46-48).

Finally, Plaintiff’s sixth cause of action appears to assert a state-law

defamation claim against the State Defendants, based on statements made by

AAG Lebron concerning the State Court Proceeding. (SAC 48-51). On this

claim, Plaintiff seeks money damages and equitable relief against the State

Defendants in the form of an order enjoining them from obtaining warrants for

his arrest going forward for violations of the November 18, 2005 Judgment and

the July 29, 2008 Order. (Id. at 50-51).

2. Plaintiff’s Claims Against the OAG and His Damages Claims

Against AAG Lebron in His Official Capacity Are Barred by the

Eleventh Amendment

All of Plaintiff’s claims against the OAG, and all of his claims for damages

against AAG Lebron in his official capacity, must be dismissed. “[A]s a general

rule, state governments may not be sued in federal court unless they have

waived their Eleventh Amendment immunity, or unless Congress has

abrogated the states’ Eleventh Amendment immunity[.]” Gollomp v. Spitzer,

568 F.3d 355, 366 (2d Cir. 2009). “The immunity recognized by the Eleventh

Amendment extends beyond the states themselves to state agents and state

11 This is the only one of Plaintiff’s claims that he actually addresses in his brief in

opposition to the motions to dismiss. (See Pl. Opp. 8-11; id. at 13-14 (“Mr. Rivera and

the other Religious Workers were terminated from the said program solely because of

their alienage.”)). However, in light of Plaintiff’s pro se status, the Court will consider

the remaining claims and not deem them to have been abandoned by Plaintiff.

instrumentalities that are, effectively, arms of a state.” Id. Thus, Eleventh

Amendment immunity applies to state officials sued in their official capacities.

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984).

The OAG is unquestionably an arm of the State of New York for purposes

of Eleventh Amendment immunity. See Morgan v. NYS Attorney Gen.’s Office,

No. 11 Civ. 9389 (PKC) (JLC), 2013 WL 491525, at *11 (S.D.N.Y. Feb. 8, 2013)

(noting that Eleventh Amendment immunity “extends to ‘arms of the state,’

such as the OAG, as well as to its officials sued in their official capacities for

money damages”); Sutherland v. NYS Dep’t of Law, No. 96 Civ. 6935 (JFK),

1999 WL 314186, at *5 (S.D.N.Y. May 19, 1999) (holding that the Eleventh

Amendment barred plaintiff’s § 1983 claims against the OAG and against the

Attorney General in his official capacity), aff’d on other grounds, 216 F.3d 1073

(2d Cir. 2000). Further, Eleventh Amendment immunity for the OAG extends

to its officials when sued in their official capacities for money damages.

Morgan, 2013 WL 491525, at *11; Sutherland, 1999 WL 314186, at *5.

New York has not waived its Eleventh Amendment immunity to suit in

federal court, and Congress did not abrogate the states’ immunity in enacting

42 U.S.C. § 1983. See Trotman v. Palisades Interstate Park Comm’n, 557 F.2d

35, 40 (2d Cir. 1977). Those of Plaintiff’s claims asserted against the State

Defendants are barred as against the OAG based on the agency’s Eleventh

Amendment immunity. Morgan, 2013 WL 491525, at *11; Sutherland, 1999

WL 314186, at *5. Likewise, those of Plaintiff’s claims seeking damages against

AAG Lebron in his official capacity are also barred by the Eleventh

Amendment. Morgan, 2013 WL 491525, at *11; Sutherland, 1999 WL 314186,

at *5. Accordingly, all of Plaintiff’s claims against the OAG, and his damages

claims against AAG Lebron in his official capacity, must be dismissed pursuant

to Fed. R. Civ. P. 12(b)(1).

3. Most, If Not All, of Plaintiff’s Claims Against the State

Defendants Are Barred by the Rooker-Feldman Doctrine

Separate and apart from these Eleventh Amendment flaws, Plaintiff’s

claims against the State Defendants suffer from other defects, including

preclusion under the Rooker-Feldman doctrine. That doctrine bars federal

courts from hearing claims “‘brought by state-court losers complaining of

injuries caused by state-court judgments rendered before the district court

proceedings commenced and inviting district court review and rejection of

those judgments.’” Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 85 (2d

Cir. 2005) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,

284 (2005)). In other words, under the Rooker-Feldman doctrine, “federal

district courts lack jurisdiction over cases that essentially amount to appeals of

state court judgments, including claims that are inextricably intertwined with a

prior determination of a state court.” Rountree v. U.S. Bank NA, No. 15 Civ.

9018 (KPF), 2017 WL 31405, at *7 (S.D.N.Y. Jan. 3, 2017) (internal quotation

marks and citations omitted). The Second Circuit has delineated four

requirements for the application of Rooker-Feldman: (i) “the federal-court

plaintiff must have lost in state court”; (ii) “the plaintiff must complain of

injuries caused by a state court judgment”; (iii) “the plaintiff must invite district

court review and rejection of that judgment”; and (iv) “the state-court judgment

must have been rendered before the district court proceedings commenced.”

Hoblock, 422 F.3d at 85 (internal quotation marks and alterations omitted).

All of the Rooker-Feldman requirements are met here with respect to

three, if not all four, of Plaintiff’s claims against the State Defendants. First, it

is indisputable that Plaintiff was the losing party in the State Court Proceeding.

(Pl. Aff. ¶¶ 16-17 (Plaintiff’s acknowledgment of the orders entered against him

in People v. Rivera); see also May 6, 2005 Order; November 18, 2005

Judgment). Second, Plaintiff’s first three claims against the State Defendants

allege injuries caused by either the May 6, 2005 Order, the November 18, 2005

Judgment, or the correlative contempt orders. (SAC 7-10, 39-46).12 Third,

Plaintiff’s allegations in the SAC and statements in his affidavit in support

thereof, repeatedly invite this Court to review and reverse the May 6, 2005

Order and November 18, 2005 Judgment. (See SAC 41-43, 44-51; Pl. Aff. ¶¶ 3-

19). Fourth, and finally, the May 6, 2005 Order and the November 18, 2005

Judgment were entered in the State Court Proceeding well before Plaintiff

commenced this action on April 8, 2019. (Compare May 6, 2005 Order and

November 18, 2005 Judgment, with Dkt. #1, 2 (Civil Cover Sheet and

Complaint dated April 8, 2019)). Further, Plaintiff’s motions to dismiss the

State Court Proceeding, and his unsuccessful appeal of the New York State

12 Insofar as Plaintiff’s sixth claim is for defamation under New York law based on

statements AAG Lebron allegedly made on July 29, 2019, and October 4, 2016 (see

SAC 49-51), the claim may elude application of the Rooker-Feldman doctrine if and to

the extent that Plaintiff (i) is contending that the statements and his resultant injuries

were not caused by orders in the State Court Proceeding and (ii) is not seeking review

and reversal of orders entered in that proceeding.

Supreme Court’s order denying one such motion, were all decided years before

he initiated this action. See Rivera, 2013 WL 6822885, at *1; Rivera, 2013 WL

6832083, at *1.

The Rooker-Feldman doctrine thus bars at least Plaintiff’s claims for

intentional infliction of emotional distress, malicious prosecution, and abuse of

process in this action because Plaintiff is a quintessential “state-court loser”

complaining of injuries caused by earlier orders in the State Court Proceeding

that he now seeks to have this Court review and overturn. The Court therefore

lacks subject matter jurisdiction over at least the first three of Plaintiff’s claims

against the State Defendants, and they must be dismissed on this independent

basis pursuant to Fed. R. Civ. P. 12(b)(1).

4. Most, If Not All, of Plaintiff’s Claims Against the State

Defendants Are Barred by Claim Preclusion

A related, but analytically distinct, basis of dismissal is claim preclusion.

Also known as res judicata, claim preclusion bars relitigation in a later lawsuit

of claims that a plaintiff brought or could have brought in an earlier lawsuit.

The law of the jurisdiction in which the earlier action took place governs the

principle of claim preclusion. Peralta v. St. Luke’s Roosevelt Hosp., No. 14 Civ.

2609 (KPF), 2015 WL 3947641, at *4 (S.D.N.Y. June 26, 2015); see also

Simmons v. Trans Express Inc., 955 F.3d 325, 328 (2d Cir. 2020) (citing Migra

v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)), certified question

accepted, 35 N.Y.3d 966 (2020). Thus, New York’s preclusion law determines

whether Plaintiff’s state action bars litigation of the present action. Giannone

v. York Tape & Label, Inc., 548 F.3d 191, 192-93 (2d Cir. 2008).

“New York has adopted a ‘transactional approach’ to claim preclusion

pursuant to which, [o]nce a claim is brought to a final conclusion, all other

claims arising out of the same transaction or series of transaction are barred.”

McKithen v. Brown, 481 F.3d 89, 103-04 (2d Cir. 2007) (internal quotations and

citations omitted); accord Hoblock, 422 F.3d at 93. In this approach, claim

preclusion applies “if [i] there is a previous adjudication on the merits; [ii] the

previous action involved the party against whom [claim preclusion] is invoked

or its privy; and [iii] the claims involved were or could have been raised in the

previous action.” Swiatkowski v. Citibank, 745 F. Supp. 2d 150, 171 (E.D.N.Y.

2010) (internal quotation marks and alternation omitted), aff’d, 446 F. App’x

360 (2d Cir. 2011) (summary order); see also People ex rel. Spitzer v. Applied Card

Sys., 11 N.Y.3d 105, 122 (2008).

“Under New York law, orders and judgments are given preclusive effect

even if they are not formally ‘final judgments’ or if they were never appealed.”

Truong v. Truong, Nos. 03 Civ. 3423 (PKC), 03 Civ. 3424 (PKC), 03 Civ. 3425

(PKC), 2007 WL 415152, at *10 (S.D.N.Y. Feb. 5, 2007). Further, under New

York law, claim preclusion “applies to defenses that could have been raised in

the prior action as well.” Swiatkowski, 745 F. Supp. 2d at 171. “Thus, res

judicata prevents a party from litigating any issue or defense that could have

been raised or decided in a previous suit, even if the issue or defense was not

actually raised or decided.” Id.

Here, as with the Rooker-Feldman doctrine, the elements of claim

preclusion are met for at least the first three of Plaintiff’s claims against the

State Defendants.13 First, there has been an adjudication on the merits in the

State Court Proceeding, as set forth in the May 6, 2005 Order and the

November 18, 2005 Judgment. Likewise, there have been prior adjudications

on the merits of the contempt motions brought against Plaintiff based on his

violations of the November 18, 2005 Judgment and the July 29, 2008 Order.

And in Plaintiff’s Court of Claims action, there has been a prior adjudication on

the merits of his false arrest and other claims for money damages. (See

Diamond Decl., Ex. Q).

Second, the State Court Proceeding involved the same parties or those in

privity with them as in this action. Namely, in the State Court Proceeding,

Plaintiff was the respondent, the OAG was the petitioner, and Plaintiff alleges

that AAG Lebron prosecuted the proceeding as the OAG’s agent. (SAC 7-11).

See Krepps v. Reiner, 377 F. App’x 65, 68 (2d Cir. 2010) (summary order)

(finding defendant in privity with party in prior action because he “was an

employee acting within the scope of his employment in connection with the

matter [] at issue”); Robinson v. Cusack, No. 05 Civ. 5318 (DLI) (JMA), 2007 WL

2028112, at *6 (E.D.N.Y. July 11, 2007) (“[P]rivity includes those who are

successors to a property interest, those who control an action although not

formal parties to it, those whose interests are represented by a party[.]”

(internal quotation marks omitted)). Likewise, Plaintiff’s Court of Claims action

13 Insofar as Plaintiff’s sixth claim is for defamation under New York law based on

statements AAG Lebron allegedly made on July 29, 2019 (SAC 49-50), it is possible that

the claim is not barred by the doctrine of claim preclusion; the alleged conduct post-

dates all orders entered in the State Court Proceeding and the dismissal of Plaintiff’s

Court of Claims action.

involved the same parties to this action and the same bases. (See Diamond

Decl., Ex. Q).

Finally, Plaintiff’s affirmative claims in this action were or could have

been raised as procedural or merits defenses, or as affirmative counterclaims in

the State Court Proceeding. See Swiatkowski, 745 F. Supp. 2d at 171-72.

Similarly, his damages claims in this action were or could have been raised in

his Court of Claims action. See id. In point of fact, Plaintiff raised many of the

allegations that underlie his affirmative claims in this action as procedural and

merits defenses in the State Court Proceeding, and all were deemed meritless.

(E.g., Diamond Decl., Ex. F at 8 (“Respondent argued that petitioner’s

translation of his advertisements into English was inaccurate.”); id. at Ex. I at 7

(“Rivera stated [] that [AAG Lebron] is motivated by personal animus against

him.”); id. at Ex. J at 5 (“Rivera stated he never had the opportunity to be heard

by the court before the November 18, 2005 order was issued and that [AAG

Lebron] is merely retaliating against him.”)). The same is true of Plaintiff’s

Court of Claims action and his damages claims in this case. (Id. at Ex Q).

On this third basis, Plaintiff’s claims for intentional infliction of emotional

distress, malicious prosecution, and abuse of process should be dismissed against

the State Defendants pursuant to Fed. R. Civ. P. 12(b)(6). See Thompson v. Cty. of

Franklin, 15 F.3d 245 (2d Cir. 1994) (noting that claim preclusion challenges are

properly raised by motion under Rule 12(b)(6)).

5. Plaintiff’s Damages Claims Against AAG Lebron Are Barred by

Absolute Prosecutorial Immunity

Another basis for dismissal exists specifically for Defendant Lebron.

Prosecutors acting within the scope of their duties are entitled to absolute

immunity. Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (citing Imbler v.

Pachtman, 424 U.S. 409, 430 (1976)). This immunity extends to actions taken

“in initiating a prosecution and in presenting the State’s case,” Smith v.

Garretto, 147 F.3d 91, 94 (2d Cir. 1998), and in taking further actions relating

to their advocacy function, Newton v. City of New York, 566 F. Supp. 2d 256

(S.D.N.Y. 2008). See also Peay v. Ajello, 470 F.3d 65, 68 (2d Cir. 2006)

(holding that a prosecutor is entitled to absolute immunity, despite allegations

of misconduct); Fields v. Soloff, 920 F.2d 1114, 1119 (2d Cir. 1990) (“[U]nless a

prosecutor proceeds in the clear absence of all jurisdiction, absolute immunity

exists for those prosecutorial activities intimately associated with the judicial

phase of the criminal process.... This protection extends to the decision to

prosecute as well as the decision not to prosecute.”). Absolute immunity

“accords protection from any judicial scrutiny of the motive for and

reasonableness of official action, even where the challenged conduct was

motivated by a wrongful motive or even malice.” In re NYSE Specialists Sec.

Litig., 503 F.3d 89, 95-96 (2d Cir. 2007) (internal quotation marks and

citations omitted). This absolute immunity shields a prosecutor from damages

claims in his individual capacity to the extent the conduct for which immunity

is claimed was integral to his prosecutorial functions. Shmueli v. City of New

York, 424 F.3d 231, 236 (2d Cir. 2005) (“It is by now well-established that a

state prosecuting attorney who acted within the scope of his duties in initiating

and pursuing a criminal prosecution is immune from a civil suit for damages

under § 1983.” (internal quotation marks and citations omitted)).

Collectively, Plaintiff’s first, third, fourth, and sixth causes of action

appear to assert claims against AAG Lebron under New York State law or 42

U.S.C. § 1983 for intentional infliction of emotional distress, malicious

prosecution, abuse of process, and defamation. (SAC 7-10, 39-43, 43-46, 48-

51). These claims are founded on allegations that AAG Lebron: (i) prosecuted

the State Court Proceeding against Plaintiff based on false allegations and for

retaliatory reasons; (ii) threatened Plaintiff with arrest; (iii) failed to “de-

energize” enforcement of purportedly applicable law and regulations; (iv) failed

to provide Plaintiff with adequate notice of the State Court Proceeding;

(v) obtained warrants of commitment pursuant to which Plaintiff was arrested;

and (vi) disseminated statements about Plaintiff’s unlawful actions. (Id.). All of

these claims allege conduct by AAG Lebron that is within the ambit of his

prosecutorial functions and he is thus entitled to absolute immunity on these

claims. See, e.g., Shmueli, 424 F.3d at 238 (finding that absolute immunity

barred claims against prosecutors for alleged malicious prosecution of plaintiff

for crimes they knew she did not commit and intentional delay of proceedings

to harass her); Bernard v. Cty. of Suffolk, 356 F.3d 495, 503-05 (2d Cir. 2004)

(finding that absolute immunity shielded prosecutors for alleged malicious or

selective prosecution without probable cause, knowingly presenting false

evidence, and withholding exculpatory evidence); Doe v. City of Bridgeport,

No. 04 Civ. 1197 (WWE), 2006 WL 905361, at *4 (D. Conn. Apr. 5, 2006)

(finding that absolute immunity barred claims that prosecutors wrongfully

issued re-arrest warrant, falsely assured plaintiff re-arrest warrant was

vacated, and conspired to defame plaintiff); see generally Ogunkoya v.

Monaghan, 913 F.3d 64 (2d Cir. 2019).14

6. Certain of Plaintiff’s Claims Against the State and Federal

Defendants Are Barred by the Applicable Statutes of

Limitations

Plaintiff’s § 1983 claims are governed by a three-year statute of

limitations; his state-law claims for the torts of intentional infliction of

emotional distress and defamation are governed by a one-year statute of

limitations. Warren v. Altieri, 59 F. App’x 426, 427 (2d Cir. 2003) (summary

order); N.Y. C.P.L.R. § 215. The only events that Plaintiff alleges occurred

within applicable limitations periods are the issuance of the August 22, 2016

Order and the September 23, 2016 Warrant of Commitment (Diamond Decl.,

Ex. P), and AAG Lebron’s alleged defamatory statements on July 29, 2019.

(SAC 49). Therefore, Plaintiff’s claim against the State Defendants for

intentional infliction of emotional distress is time-barred. Further, Plaintiff’s

§ 1983 claims against the State Defendants for abuse of process and malicious

14 “[Section] 1983 may support claims against prosecutors for actions taken outside their

role as advocates for the government, such as speaking to the press.” Mosley v.

McIntosh, No. 08 Civ. 9635 (PKC), 2009 WL 1542546, at *3 (S.D.N.Y. May 29, 2009); see

Hickey v. City of New York, No. 01 Civ. 6506 (GEL), 2002 WL 1974058, at *4 (S.D.N.Y.

Aug. 26, 2002). The statements here were made outside of court, but they were made

during the course of an investigation into Plaintiff’s continued provision of immigration

services. (See SAC 49-51). Even if the lower standard of qualified immunity were to

apply, the Court would still dismiss this claim, as Plaintiff has not adequately alleged

that any of the challenged statements was untrue.

prosecution, to the extent they are based on the OAG’s prosecution of Plaintiff

in People v. Rivera and the first three warrants of commitment, are also time-

barred. Finally, Plaintiff’s claims for defamation arising from AAG Lebron’s

statements prior to April 2, 2018, such as AAG Lebron’s October 4, 2016

statement about Rivera targeting undocumented immigrants (see SAC 49-51),

are time-barred.

7. The SAC Fails to State a Claim

a. The SAC Fails to State a Claim for Wrongful Denial

Against the Federal Defendants

In addition to the above-described pleading defects, Plaintiff also fails to

state a claim. Beginning with Plaintiff’s causes of action against the Federal

Defendants, the Court observes as to each that the primary relief Plaintiff is

seeking appears to be the reversal of USCIS’s denials of the three I-360

petitions and OLAP’s denial of his Form EOIR-31 and EOIR-31A applications.

(See SAC 24, 47). While couched in differing legal theories, Plaintiff’s chief

argument appears to be that his previous entanglements with the judicial

system amount to illegitimate arrests and void judgments; that the denials of

the I-360s and the EOIR-31 and EOIR-31A applications improperly relied on

those entanglements; and that the denials are therefore illegitimate as well.

(See id. at 7, 20, 25-27, 38, 43, 46). Irrespective of the legal theory, Plaintiff’s

claims of wrongful denial fail.

As an initial matter, both USCIS and OLAP were well within their rights

to rely on the valid judgments entered against Plaintiff, as well as his criminal

record. Plaintiff has repeatedly attempted to relitigate the May 5, 2005 Order

to no avail. See, e.g., Rivera, 9 N.Y.S.3d at 871 (“[T]his appeal is an improper

attempt to relitigate the May 2005 order, and the time to seek reargument of

that order has long since passed.”). And as explained above, the Court does

not have jurisdiction to review such state court judgments, and it is improper

for Plaintiff to seek same in this Court. See Miran v. Solomon, No. 15 Civ. 6133

(MAT), 2019 WL 5694225, at *3 (W.D.N.Y. Nov. 4, 2019) (collecting cases

holding that Rule 60(b)(4) does not permit a federal district court to render the

judgment of a state court void). Plaintiff has presented no reasons why OLAP

and USCIS would not be permitted to consider, or rely on, facially valid state

proceedings in making their determinations.

Further, Plaintiff fails to show why OLAP’s disapproval of his EOIR-31

and EOIR-31A applications was based on anything other than legally

permissible grounds. In its disapproval, OLAP explained that all “applications

for accreditation must include proof that an individual ‘has the character and

fitness to represent clients before the Immigration Courts and the Board, or

DHS, or before all three authorities.’” (SAC, Ex. 9 (quoting 8 C.F.R.

§ 1292.12(a)(1))). “An applicant’s character and fitness is evaluated by ‘an

examination of factors such as: Criminal background; prior acts involving

dishonesty, fraud, deceit, or misrepresentation; past history of neglecting

professional, financial, or legal obligations.” 8 C.F.R. § 1292.12(a)(1). In

denying Plaintiff’s applications, OLAP explained that Plaintiff was “a person of

concern due to his history of prosecution for fraud and theft,” citing “[r]ecords

show[ing] that as recently as October 2016, Mr. Rivera was arrested and

ordered to serve jail time for violating a court order to pay restitution to the

victims of his fraudulent practices and for continuing to provide immigration

legal services despite a court order banning him from providing such services.”

Id.15 The State Court Proceeding is exactly the type of evidence OLAP is

instructed to consider in deciding whether to approve or deny EOIR-31 and

EOIR-31A applications.

It was also permissible for USCIS to consider the State Court Proceeding

in adjudicating the I-360 petitions:

The supporting evidence submitted may be verified by

USCIS through any means determined appropriate by

USCIS, up to and including an on-site inspection of the

petitioning organization. The inspection may include a

tour of the organization’s facilities, an interview with the

organization’s officials, a review of selected organization

records relating to compliance with immigration laws

and regulations, and an interview with any other

individuals or review of any other records that the

USCIS considers pertinent to the integrity of the

organization. An inspection may include the

organization headquarters, satellite locations, or the

work locations planned for the applicable employee. If

USCIS decides to conduct a pre-approval inspection,

satisfactory completion of such inspection will be a

condition for approval of any petition.

15 Further, OLAP is entitled to disapprove of applicants who have criminal records, and

courts routinely dismiss complaints challenging OLAP’s accreditation procedure when

the application has been denied because the applicant has a felony conviction. See,

e.g., Davila v. Gutierrez, 330 F. Supp. 3d 925, 942 (S.D.N.Y. 2018) (“Because the plain

language of the applicable regulation … allows OLAP to terminate a person who has

been convicted of a felony, and OLAP terminated [plaintiff] because he was convicted of

a felony … the Court concludes that OLAP examined the relevant data and articulated a

satisfactory explanation for its action.”); Davila v. Lang, 343 F. Supp. 3d 254, 277

(S.D.N.Y. 2018) (same). Plaintiff has already admitted to this Court that he has also

been convicted of a federal immigration offense unrelated to the forms and arrests

described in the complaint. (See Dkt. #34 at 38:22-24).

8 C.F.R. § 204.5(m)(12). It is pursuant to this regulation that USCIS

considered the State Court Proceeding in issuing notices of intent to deny Juan

Collado Tejada’s and Gladis Collado’s I-360 petitions. (See SAC, Ex. 8 & 9). In

so doing, USCIS relied on legally permissible grounds. And, in any event,

USCIS articulated reasons on the merits for the notices of intent to deny the I-

360 petitions that were unrelated to Plaintiff’s arrests and judgments.16 Thus,

Plaintiff fails to state a claim premised on OLAP’s denial of his EOIR-31 and

EOIR-31A applications and USCIS’s denials of the I-360 petitions for which

Plaintiff served as sponsor.

b. The SAC Fails to State a Claim Under 42 U.S.C. § 1983

Against the State and Federal Defendants

Plaintiff also fails to state a claim against any Federal Defendant under

42 U.S.C. § 1983. (See SAC 43-48). To begin, § 1983 only applies to

constitutional violations committed by state actors, not federal actors. See

Grant v. United States, No. 17 Civ. 2172 (PGG), 2018 WL 3574865, at *3

(S.D.N.Y. July 25, 2018); see also Lubrano v. United States, 751 F. Supp. 2d

453, 455 (E.D.N.Y. 2010) (“Based on the statute’s reference to state actors, it is

well-settled that Section 1983 does not provide an avenue to assert causes of

action against the federal government or its agents.”); Weise v. Syracuse

University, 522 F.2d 397, 404 (2d Cir. 1975) (“[Section] 1983 and its

16 Plaintiff also refers to the denial of Raymond Urena’s I-360 petition. (SAC 19). But as

Plaintiff concedes in the SAC, Urena’s petition was denied because “the beneficiary did

not possess the two years’ experience required.” (Id.). USCIS’s decision denying

Urena’s petition is not based, in whole or in part, on Plaintiff’s State Court Proceeding.

(See SAC, Ex. 18).

jurisdictional counterpart, 28 U.S.C. § 1343(3), have no applicability to federal

action.’”).

But even were the Court to construe the Second Amended Complaint as

raising claims pursuant to Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), Plaintiff’s claims would still be

dismissed. See, e.g., Shue v. United States, 466 F. App’x 51, 51 (2d Cir. 2012)

(summary order) (“[Plaintiff]’s constitutional claims against federal officials are

properly analyzed as claims pursuant to Bivens ... rather than 42 U.S.C.

§ 1983.”). In Bivens, the Supreme Court created an implied damages remedy

to compensate a petitioner who suffered injury as a result of federal agents’

violation of his rights under the Fourth Amendment. 403 U.S. at 397.

Subsequent cases, however, underscore the narrowness of its reach. Following

Bivens, the Supreme Court recognized two other implied constitutional causes

of action: in Davis v. Passman, 442 U.S. 228 (1979), and Carlson v. Green, 446

U.S. 14 (1980). Davis recognized a damages remedy for gender discrimination

under the Fifth Amendment’s Due Process Clause, see 442 U.S. at 248-49,

while Carlson recognized a damages remedy for failure to provide medical

treatment to an incarcerated individual under the Eighth Amendment’s

proscription of cruel and unusual punishment, see 446 U.S. at 23.

Beyond these three cases, the Supreme Court has declined to recognize

an implied cause of action for damages under the Constitution. See Ziglar v.

Abbasi, 137 S. Ct. 1843, 1855 (2017). Indeed, since its decision in Carlson, the

Supreme Court has expressed caution as to the prospect of expanding Bivens

further. See id. at 1855-56. In Abbasi, the Supreme Court described the three

approved Bivens claims with a striking degree of specificity: “a claim against

FBI agents for handcuffing a man in his own home without a warrant; a claim

against a Congressman for firing his female secretary; and a claim against

prison officials for failure to treat an inmate’s asthma.” Id. at 1860. As other

courts in the Second Circuit have noted, the Supreme Court’s opinion in Ziglar

makes “clear that the only recognized implied rights of action are the narrow

situations presented in Bivens, Davis, and Carlson, and lower courts must

scrutinize attempts to expand the Bivens remedy, even where courts had

assumed the availability of such a remedy.” Gonzalez v. Hasty, 269 F. Supp.

3d 45, 58 (E.D.N.Y. 2017), aff’d, 755 F. App’x 67 (2d Cir. 2018) (summary

order); see also Silva v. Canarozzi, No. 18 Civ. 1771 (MPS), 2019 WL 1596346,

at *2 (D. Conn. Apr. 15, 2019); Rivera v. Samilo, 370 F. Supp. 3d 362, 367

(E.D.N.Y. 2019).

Courts are required to follow a “rigorous two-step inquiry ... to determine

whether to imply a Bivens cause of action in a new context or against a new

category of defendants.” Samilo, 370 F. Supp. 3d at 367. The first step

requires the court to “determine whether a plaintiff’s claims arise[s] in a new

Bivens context.” Id. “If the case is different in a meaningful way from previous

Bivens cases decided by this Court [i.e., Bivens, Davis, and Carlson], then the

context is new.” Ziglar, 137 S. Ct. at 1859-60. Moreover, the Supreme Court

has cautioned that “even a modest extension is still an extension.” Id. at 1864.

If the context is indeed new, then the court must discern whether there

are “‘special factors counselling hesitation in the absence of affirmative action

by Congress.’” Ziglar, 137 S. Ct. at 1857 (quoting Carlson, 446 U.S. at 18). A

special factor is one that “cause[s] a court to hesitate” before answering in the

affirmative “whether the Judiciary is well suited, absent congressional action or

instruction, to consider and weigh the costs and benefits of allowing a damages

action to proceed.” Id. at 1858. “The threshold for concluding that a factor

counsels hesitation ‘is remarkably low.... Hesitation is a pause, not a full

stop.’” Ojo v. United States, 364 F. Supp. 3d 163, 175 (E.D.N.Y. 2019) (quoting

Turkmen v. Ashcroft, No. 02 Civ. 2307 (DLI) (SMG), 2018 WL 4026734, at *9

(E.D.N.Y. Aug. 13, 2018)).

Additionally, the court must ask “whether any alternative, existing

process for protecting the injured party’s interest” exists that may “amount to a

convincing reason for the Judicial Branch to refrain from providing a new and

freestanding remedy in damages.” Ziglar, 137 S. Ct. at 1858. “If there is an

alternative remedial structure present ..., that alone may limit the power of the

Judiciary to infer a new Bivens cause of action.” Id. Of potential significance

to the instant motion, “[i]t matters not whether plaintiff’s alternative claims

w[ould] succeed.” Ojo v. United States, No. 16 Civ. 4112 (MKB) (LB), 2019 WL

3852391, at *14 (E.D.N.Y. Aug. 15, 2019) (citing Sanford v. Bruno, No. 17 Civ.

5132 (BMC), 2018 WL 2198759, at *7 (E.D.N.Y. May 14, 2018) (finding the

remedies that existed “to address plaintiff'’s situation here are thus adequate

for purposes of determining whether to imply a Bivens remedy — even though

those remedies did not work in this instance”)), report and recommendation

adopted, No. 16 Civ. 4112 (MKB) (LB), 2019 WL 4602823 (E.D.N.Y. Sept. 23,

2019).

Plaintiff’s claims here — that USCIS, Cioppa, and OLAP violated: (i) his

due process rights by denying the I-360 petitions on the basis of Plaintiff’s

arrests,17 and (ii) his equal protection rights by treating aliens differently from

citizens18 — are far different than the three types of approved Bivens claims.

See Oliveras v. Basile, No. 16 Civ. 9619 (KPF), 440 F. Supp. 3d 365, 369-70

(S.D.N.Y. 2020). They are, in essence, Fifth Amendment due process and equal

protection claims, and for that reason, the Court finds they present a new

context. And, at the second step of the analysis, the Court finds special factors

that counsel against extension of the Bivens remedy, including the fact that

Plaintiff has several remedies to address his grievances with the Federal

Defendants, some of which he attempts to utilize in this lawsuit, including tort

claims for malicious prosecution. See id. at 372-75; Mejia-Mejia v. U.S.

17 The circumstances Plaintiff raises in his opposition brief — that his wife’s permanent

residency application was denied (see Pl. Opp. 11-12) — fall similarly into this category.

18 In any event, classifications in the immigration context are subject only to rational basis

review. See Domond v. INS, 244 F.3d 81, 87 (2d Cir. 2001) (“Distinctions between

different groups of aliens are subject to rational basis review.”). Plaintiff has failed to

rebut the presumed rational basis for USCIS’s classification decisions regarding asylum

applications. See Xu v. Cissna, No. 19 Civ. 2584 (KPF), 2020 WL 240839, at *11

(S.D.N.Y. Jan. 16, 2020) (rejecting equal protection challenge to immigration rule that

“discourage[s] frivolous, fraudulent, or otherwise meritless asylum application[s] filed

solely to obtain work authorization”).

Immigration & Customs Enf’t, No. 18 Civ. 1445 (PLF), 2019 WL 4707150, at *4-

6 (D.D.C. Sept. 26, 2019).19

c. The SAC Fails to State a Claim for a Violation of 5 U.S.C.

§ 702

Plaintiff adds 5 U.S.C. § 702 as a source of authority for his fifth claim,

which purports to allege due process and equal protection violations. (See

SAC 46-48). Under the Administrative Procedures Act (“APA”), a plaintiff

“suffering a legal wrong because of agency action, or adversely affected or

aggrieved by agency action within the meaning of the relevant statute,” 5

U.S.C. § 702, may sue to compel that agency to act, but “only where a plaintiff

asserts that an agency failed to take a discrete agency action that it is required

to take.” George v. Gutierrez, No. 1:04 Civ. 3901 (ENV) (LB), 2007 WL 1029002,

at *6 (E.D.N.Y. Mar. 28, 2007), aff’d sub nom. George v. Evans, 311 F. App’x

426 (2d Cir. 2009) (summary order) (citing Norton v. S. Utah Wilderness

Alliance, 542 U.S. 55, 64 (2004)) (emphasis in Norton). The Second Amended

Complaint fails to identify any action that USCIS was required to take, and so

fails to state a claim pursuant to § 702.

Undaunted, Plaintiff argues that by denying the I-360 petitions because

of the State Court Proceeding, Cioppa and OLAP “erroneously deprived”

19 Even if the Court were to recognize a Bivens remedy here, Plaintiff has failed to plead

any facts describing the personal involvement of the Federal Defendants in his alleged

Constitutional violations. The doctrines of vicarious liability and respondeat superior

are inapplicable to Bivens suits; rather, “a plaintiff must plead that each Government-

official defendant, through the official’s own individual actions, has violated the

Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); see also Thomas v. Ashcroft,

470 F.3d 491, 496-97 (2d Cir. 2006). Therefore, Plaintiff fails to state a claim under 42

U.S.C. § 1983, even if that claim were construed as arising under Bivens.

Plaintiff and HBP members “of the acquisition of permanent residence and

[have] unconstitutionally discriminated against Plaintiffs based on AAG’s false

charges and the void contempt arrest on October 2016.” (SAC 46). He argues

that “Defendants’ denials should be reversed, because the USCIS did not

provide a cause of action, only a form of relief, and because Cioppa’s factual

allegations do not establish a plausible equal protection or due process

protections.” (SAC 47). These contentions are difficult to parse but, at any

rate, are undermined by the USCIS’s decisions, which, as described above,

were made on grounds unrelated to Plaintiff’s past judicial entanglements.

Because USCIS’s and OLAP’s decisions were based on reasons that are entirely

consistent with law, Plaintiff fails to state an APA claim.

8. The Court Declines Subject Matter Jurisdiction over Plaintiff’s

State-Law Claims Against the Federal Defendants

Finally, Plaintiff alleges state-law claims for intentional infliction of

emotional distress, negligence, and breach of duty. Plaintiff has not stated any

applicable statutory basis for this Court’s jurisdiction over such claims.

Rather, in support of subject matter jurisdiction, Plaintiff invokes 5 U.S.C.

§ 552(a)(4)(B), which authorizes a district court to order the production of

improperly withheld records from an agency to a complainant, and 5 U.S.C.

§ 552(a)(6)(C)(i), which deals with exhaustion of administrative remedies in the

context of a request to an agency for records. (See SAC 5).

While Plaintiff does invoke federal question jurisdiction under 28 U.S.C.

§ 1331, there is no invocation of diversity jurisdiction under 28 U.S.C. § 1332,

nor does Plaintiff plead any facts to support the finding of diversity jurisdiction.

Indeed, Plaintiff lists his address in the Bronx, defeating complete diversity.

See id. Therefore, the Court cannot exercise jurisdiction over these claims

pursuant to diversity jurisdiction. See Hallingby v. Hallingby, 574 F.3d 51, 56

(2d Cir. 2009). And since the Court has dismissed all of Plaintiff’s claims

arising under federal law, this Court may decline to exercise supplemental

jurisdiction as well. See Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122

(2d Cir. 2006) (“[A] district court may decline to exercise supplemental

jurisdiction if it has dismissed all claims over which it has original

jurisdiction.” (internal quotation marks omitted)). It declines to do so here.

CONCLUSION

For the reasons above, Defendants’ motion to dismiss the Second

Amended Complaint is GRANTED. Plaintiff’s Second Amended Complaint is

dismissed with prejudice, except for his state-law claims of intentional

infliction of emotional distress, negligence, and breach of duty, over which the

Court declines to exercise jurisdiction.

The Clerk of Court is respectfully directed to terminate the motions

pending at docket entries 44 and 47, adjourn all remaining dates, and close

this case.

SO ORDERED.

Dated: August 12, 2020

New York, New York __________________________________

KATHERINE POLK FAILLA

United States District Judge

Sent by First Class Mail to:

Edwin Rivera

1428 Zerega Avenue

Bronx, NY 10462-5410