The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Omar Shaaban, Case No. 3:20-cv-2406
Plaintiff,
v. MEMORANDUM OPINION
AND ORDER
U.S. Citizenship and Immigration
Services, et al.,
Defendants.
I. INTRODUCTION
Plaintiff Omar Shaaban, proceeding pro se, challenges the denial of visa petitions he filed with
the United States Citizenship and Immigration Services (“USCIS”). (Doc. No. 1). Defendants
USCIS, the Secretary of Homeland Security, the Director of USCIS, the Chairman of the Board of
Immigration Appeals, and the District Director of the Cleveland Field Office of USCIS moved to
dismiss Shaaban’s complaint for lack of subject matter jurisdiction and for failure to state a claim
upon which relief may be granted. (Doc. No. 7). Shaaban filed a brief in opposition to Defendants’
motion, (Doc. Nos. 8 and 8-1), and Defendants filed a brief in reply. (Doc. No. 10). For the
reasons stated below, I grant Defendants’ motion.
II. BACKGROUND
Born in Lebanon in 1974, Shaaban first came to the United States on a student visa on
November 30, 2000. (Doc. No. 1 at 5). Shaaban married his first wife, Stephanie, on August 28,
2001. Stephanie filed an I-130 Petition on September 14, 2001. (Id.).
The I-130 Petition allows a United States citizen or lawful permanent resident to petition the
USCIS to classify the petitioner’s non-citizen spouse as an immediate relative. 8 C.F.R. § 204.1(a).
If the I-130 is approved, the beneficiary-spouse then can file a Form I-485, Application to Register
Permanent Residence or Adjust Status. 8 C.F.R. § 245.2(a)(2).
Shaaban and Stephanie were interviewed by a USCIS agent on June 4, 2002, though no
action was taken. (Doc. No. 1 at 5). Shaaban and Stephanie divorced approximately two years later,
and Shaaban married his second wife, Regina, on July 4, 2004. Stephanie’s I-130 Petition was
withdrawn, and Regina filed an I-130 Petition on November 16, 2004. (Id.). Sadly, Regina died on
February 3, 2005.
Shaaban married his third wife, Norma, on April 28, 2006. Norma filed an I-130 Petition on
October 12, 2006. (Id. at 6). Shaaban and Norma were interviewed by a USCIS agent in January
2007. No action was taken on Norma’s petition until October 2010, when the USCIS denied
Norma’s I-130 Petition. (Id.). The Director of the Cleveland Field Office denied the petition
because there was “substantial and probative evidence that the beneficiary’s marriage to his first
United States citizen spouse was entered into for the purpose of evading the immigration laws.”
(Doc. No. 1-1 at 2).
Shaaban appealed the decision to the Board of Immigration Appeals, which affirmed the
Field Director’s decision. (Doc. No. 1 at 6). During the course of the USCIS’s investigation, the
landlord of the apartment where Shaaban and Stephanie resided after they were married stated
Shaaban had told him Shaaban “had paid his spouse $7,000 to $10,000 to marry him and that his
rent would be late on one occasion because he had to pay her another $1[,]000 and that he told the
landlord after an immigration interview that he thought immigration authorities were ‘on to him.’”
(Doc. No. 1-1 at 2). Further, the landlord reported to the USCIS that Stephanie “had another
boyfriend and that both lived with [Shaaban] for a short time but moved out together some months
later.” (Id.). Finally, Shaaban acknowledged to the USCIS that he and Stephanie only lived together
from “‘several weeks before [their] marriage’ on August 21, 2001, until January 2002.” (Id.).
Shaaban admitted making the statements the landlord described but stated he was joking and
the statements were not true. (Id.) The Board of Immigration Appeals concluded Shaaban’s
explanation was “insufficient to rebut the substantial and probative evidence that [his] previous
marriage was fraudulent.” (Id.).
Shaaban asserts one cause of action under the Administrative Procedure Act (“APA”). He
seeks a declaration that Defendants improperly denied the I-130 Petition and violated the APA by
doing so. (Doc. No. 1 at 7). He also seeks an order requiring USCIS to immediately approve
Norma’s I-130 Petition and to grant his I-485 Petition. (Id.).
III. STANDARD
A party may move to dismiss claims alleged against it for lack of subject matter jurisdiction
by filing a motion under Rule 12. Fed. R. Civ. P. 12(b)(1). Defendants may make either a facial or a
factual attack on subject matter jurisdiction under Rule 12(b)(1). Ohio Nat’l Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir. 1990). “The plaintiff bears the burden of establishing that
jurisdiction exists.” Taylor v. KeyCorp, 680 F.3d 609, 615 (6th Cir. 2012) (citing Nichols v. Muskingum
Coll., 318 F.3d 674, 677 (6th Cir. 2003)).
A defendant also may seek to dismiss a plaintiff’s complaint on the ground the complaint
fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). When ruling on a
motion to dismiss, a court construes the complaint in the light most favorable to the plaintiff and
accepts as true well-pleaded factual allegations. Daily Servs., LLC v. Valentino, 756 F.3d 893, 896 (6th
Cir. 2014) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Factual allegations must be sufficient to
state a plausible claim for relief. Iqbal, 556 U.S. at 678. Legal conclusions and unwarranted factual
inferences are not entitled to a presumption of truth. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007).
IV. ANALYSIS
Defendants have moved to dismiss Shaaban’s complaint. First, Defendants argue the
Declaratory Judgment Act, 28 U.S.C. § 2201, does not constitute an independent basis for federal
subject matter jurisdiction and, therefore, that portion of Shaaban’s complaint lacks merit. (Doc.
No. 7 at 3-4). It is true that § 2201 “does not create an independent cause of action” and does not
provide a stand-alone basis for subject matter jurisdiction. Davis v. United States, 499 F.3d 590, 594
(6th Cir. 2007). But, as Shaaban argues, this has no impact on this Court’s jurisdiction to hear
Shaaban’s claims, as 28 U.S.C. § 1331 provides for subject matter jurisdiction over actions brought
pursuant to the APA for judicial review of an agency’s action. See Jama v. Dep’t of Homeland Sec., 760
F.3d 490, 494 (6th Cir. 2014).
Next, Defendants argue Shaaban fails to state a claim for relief because his claims are barred
by the applicable statute of limitations. (Doc. No. 7 at 4-6). Claims brought against the federal
government under the APA are subject to a six-year limitations period, which begins to run when
“the right of action first accrues.” 28 U.S.C. § 2401. A cause of action under the APA accrues when
there has been a “final agency action.” Bangura v. Hansen, 434 F.3d 487, 500 (6th Cir. 2006). “An
action is final where it: (1) marks the ‘consummation of the agency’s decision-making process;’ and
(2) determines rights and obligations or occasions legal consequences.” Id. at 500-01 (citing Bennett v.
Spear, 520 U.S. 154, 177-78 (1997) and Air Brake Sys., Inc. v. Mineta, 357 F.3d 632, 639 (6th Cir.
2004)).
The Board of Immigration Appeals issued its decision affirming the denial of Norma’s I-130
Petition on August 2, 2012. (Doc. No. 1-1). Defendants argue Shaaban’s claims are barred by the
statute of limitations because he did not file his complaint in this case until October 23, 2020, over
eight years after the final agency action. (Doc. No. 7 at 6).
Shaaban first argues his claims are not barred because he initially filed suit regarding the
denial of the I-130 Petition on August 1, 2018, (see Case No. 3:18-cv-1781), and the Ohio Savings
Statute causes his new action to relate back to the filing date of his first lawsuit. (Doc. No. 8-1 at 8).
This argument is not persuasive, as a state savings statute does not preempt a federal statute of
limitations. See, e.g., Ruhl v. Ohio Health Dep’t, 725 F. App’x 324, 335 (6th Cir. 2018).
He next argues his claims are not barred by the statute of limitations because of the
continuing violation doctrine. (Doc. No. 8-1 at 9). The continuing violation doctrine tolls a
limitations period “when: (1) ‘there is some evidence of present [prohibited] activity giving rise to
a claim of a continuing violation’ and ‘at least one of the forbidden . . . acts occurs within the
relevant limitations period’; or (2) there is a ‘longstanding and demonstrable policy’ of the forbidden
activity.” Ohio Midland, Inc. v. Ohio Dep’t of Transp., 286 F. App’x 905, 912 (6th Cir. 2008) (citing
Trzebuckowski v. City of Cleveland, 319 F.3d 853, 857 (6th Cir. 2003)). “[C]ourts have been ‘extremely
reluctant to apply [the continuing violations] doctrine outside of the context of Title VII.’” Ohio
Midland, 286 F. App’x at 912 (quoting LRL Props. v. Portage Metro Hous. Auth., 55 F.3d 1097, 1105 n.
3 (6th Cir.1995)).
Shaaban does not point to any case within the Sixth Circuit in which a court has applied the
continuing violation doctrine to an APA claim. Moreover, his argument that he can establish a
continuing violation based upon the Defendants’ continued refusal to grant his permanent residency
petitions, (Doc. No. 8-1 at 9), is the same type of argument the Sixth Circuit rejected in Ohio Midland.
In that case, the court rejected the plaintiff’s argument that there was a continuing violation of the
plaintiff’s rights based upon the defendants’ “alleged ‘continued decision’” not to reverse the
defendants’ earlier alleged constitutional violation. Ohio Midland, 286 F. App’x at 912. The Sixth
Circuit held the defendants “‘continued decision’ . . . was merely a manifestation” of the earlier
alleged violation. Id. Here, as in Ohio Midland, Shaaban cannot avoid the statute of limitations by
claiming Defendants have failed to reverse their allegedly improper decision.
Nor can he extend the limitations period by attempting to tie in removal proceedings before
the Executive Office for Immigration Review. (See Doc. No. 8-1 at 9-10). Shaaban did not include
any allegations in his complaint with respect to any removal proceedings, instead offering those
allegations for the first time in his opposition brief. “Plaintiffs cannot . . . amend their complaint in
an opposition brief or ask the court to consider new allegations (or evidence) not contained in
the complaint.” Bates v. Green Farms Condo. Ass’n, 958 F.3d 470, 483 (6th Cir. 2020) (citations
omitted).1
Finally, Shaaban argues the limitations period should be “equitably tolled as a matter of
fairness and to prevent inequity.” (Doc. No. 8-1 at 10). The Sixth Circuit instructs courts to
consider five factors “when determining the appropriateness of equitably tolling a statute of
limitations: 1) lack of notice of the filing requirement; 2) lack of constructive knowledge of the filing
requirement; 3) diligence in pursuing one’s rights; 4) absence of prejudice to the defendant; and 5)
the plaintiff’s reasonableness [in] remaining ignorant of the particular legal requirement.” Truitt v.
Cnty. of Wayne, 148 F.3d 644, 648 (6th Cir. 1998).
While not all five factors will be relevant in every case, Amini v. Oberlin College, 259 F.3d 493,
500 (6th Cir. 2001), Shaaban fails to show any of these factors weigh in his favor. Shaaban had
notice of the filing requirement, as he filed his first complaint within the limitations period.
1 Nor would those allegations have made a difference if Shaaban had properly presented them. He
alleges that the removal proceedings are “the result of the wrongful acts set forth in Plaintiff’s
Complaint.” (Doc. No. 8-1 at 10). Even if I were to assume the continuing violation doctrine could
apply in cases like this one, that doctrine plainly excludes from its scope acts which are the “present
effects of past [misconduct.]” Tenenbaum v. Caldera, 45 F. App’x 416, 419 (6th Cir. 2002) (citing
Dixon v. Anderson, 928 F.2d 212, 216 (6th Cir. 1991)).
He has not shown he exercised diligence in pursuing his rights, as he failed to perfect service
of process on Defendants in the 2018 case as required by the Federal Rules of Civil Procedure and
failed to respond to Defendants’ motion to dismiss for insufficient service of process. (Case No.
3:18-cv-1781, Doc. No. 6 at 1).
Lastly, Shaaban fails to show he acted reasonably in waiting to file his second complaint until
one year after his first case was dismissed. Shaaban claims he “mistakenly assumed that there was a
saving[s] statute in federal law,” but, as an attorney, he was far better positioned than most pro se
plaintiffs to access the resources which would have cured his mistaken assumption. (Doc. No. 8-1
at 10).
Shaaban filed his complaint outside of § 2401’s six-year limitations period and fails to
establish a reason why that deadline should not apply. Therefore, I conclude his claims are time-
barred and grant Defendants’ motion to dismiss.
V. CONCLUSION
For the reasons stated above, I grant Defendants’ motion to dismiss. (Doc. No. 7).
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge